exv10w3



 



     Exhibit 10.3


EQUITY OFFICE

SECOND AMENDED AND RESTATED

SUPPLEMENTAL RETIREMENT SAVINGS PLAN



As Amended and Restated Effective September 1, 2003



 







 


TABLE OF CONTENTS




	 	 	 	 	 	 
	SECTION	 	PAGE
	
	 	

	ARTICLE 1 INTRODUCTION
	 	 	3	 
	 	1.1 Background and Purpose of Plan
	 	 	3	 
	 	1.2 Status of Plan
	 	 	3	 
	ARTICLE 2 DEFINITIONS
	 	 	3	 
	ARTICLE 3 PARTICIPATION
	 	 	7	 
	 	3.1 Satisfaction of Eligibility Requirements
	 	 	7	 
	 	3.2 Commencement of Participation
	 	 	7	 
	 	3.3 Continued Participation
	 	 	7	 
	 	3.4 Suspension of Participation
	 	 	7	 
	ARTICLE 4 ELECTIVE, SHARE AND MATCHING CONTRIBUTIONS
	 	 	8	 
	 	4.1 Elective Deferrals
	 	 	8	 
	 	4.2 Share Deferrals
	 	 	9	 
	 	4.3 Matching Contributions
	 	 	10	 
	 	4.4 Enrollment Forms
	 	 	11	 
	ARTICLE 5 ACCOUNTS
	 	 	11	 
	 	5.1 Accounts
	 	 	11	 
	 	5.2 Trusts
	 	 	11	 
	 	5.3 Investments
	 	 	12	 
	ARTICLE 6 VESTING
	 	 	12	 
	 	6.1 General
	 	 	12	 
	 	6.2 Change in Control
	 	 	13	 
	 	6.3 Death or Disability
	 	 	13	 
	 	6.4 Insolvency
	 	 	13	 
	ARTICLE 7 PAYMENTS
	 	 	13	 
	 	7.1 Election as to Time and Form of Payment
	 	 	13	 
	 	7.2 Termination of Service
	 	 	14	 
	 	7.3 Death
	 	 	15	 
	 	7.4 Withdrawal Due to Unforeseeable Emergency
	 	 	15	 
	 	7.5 Other Withdrawals
	 	 	15	 
	 	7.6 Forfeiture of Non-Vested Amounts
	 	 	16	 
	 	7.7 Taxes
	 	 	16	 





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	ARTICLE 8 LIABILITY
	 	 	16	 
	 	8.1 Employer Liability
	 	 	16	 
	 	8.2 Successor Liability
	 	 	16	 
	ARTICLE 9 PLAN ADMINISTRATOR
	 	 	17	 
	 	9.1 Plan Administration and Interpretation
	 	 	17	 
	 	9.2 Powers, Duties, Procedures
	 	 	17	 
	 	9.3 Information
	 	 	17	 
	 	9.4 Indemnification of Plan Administrator
	 	 	17	 
	ARTICLE 10 AMENDMENT AND TERMINATION
	 	 	18	 
	 	10.1 Amendments
	 	 	18	 
	 	10.2 Termination of Plan
	 	 	18	 
	 	10.3 Existing Rights
	 	 	18	 
	ARTICLE 11 CLAIMS PROCEDURE
	 	 	18	 
	 	11.1 Denial of Claim
	 	 	18	 
	 	11.2 Review of Claim
	 	 	19	 
	ARTICLE 12 MISCELLANEOUS
	 	 	20	 
	 	12.1 No Funding
	 	 	20	 
	 	12.2 Non-Assignability
	 	 	20	 
	 	12.3 Limitation of Participant’s Rights
	 	 	20	 
	 	12.4 Participants Bound
	 	 	20	 
	 	12.5 Receipt and Release
	 	 	20	 
	 	12.6 Governing Law
	 	 	21	 
	 	12.7 Headings and Subheadings
	 	 	21	 





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ARTICLE 1

INTRODUCTION



     1.1 Background and Purpose of Plan


     Equity Office Properties Trust and Equity Office Properties Management
Corp. (collectively “Equity Office”) established, effective November 1, 1997,
the Equity Office Supplemental Retirement Savings Plan (“Plan”). This document
is an amendment and restatement of the Plan effective as of September 1, 2003.


     The Plan provides a means by which members of the Board of Trustees of
Equity Office Properties Trust, individuals who are employees of Equity Office
and individuals who are employees of related companies may elect to defer
receipt of portions of their Compensation, to defer income with respect to
Unrestricted Shares, Restricted Shares, Share Options and Share Appreciation
Rights, and to save for their retirement.


     1.2 Status of Plan


     Except with respect to the participation of trustees, it is intended that
the Plan be “a plan which is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees” within the meaning of ERISA §§
201(2), 301(a)(3) and 401(a)(1), and that the Plan be interpreted and
administered consistent with that intent.


ARTICLE 2

DEFINITIONS



     Wherever used herein, the following terms have the meanings set forth
below, unless a different meaning is clearly required by the context:


     Account means the account established for each Participant’s benefit
pursuant to Section 5.1.


     Change in Control means any of the following events:


	(a)
	 	An acquisition (other than directly from EOPT) of any voting securities
of EOPT (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 EOPT’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) EOPT
and/or its affiliates, including EOPMC (collectively, 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).




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	(b)
	 	Approval by shareholders of EOPT of:




	(i)
	 	A merger, consolidation or reorganization involving EOPT, if:




	(A)
	 	the shareholders of EOPT, immediately before such merger, consolidation
or reorganization, fail to own, directly or indirectly, immediately
following such merger, consolidation or reorganization, at least seventy
percent (70%) of the combined voting power of the outstanding Voting
Securities of the 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 do not constitute at least a majority of the members of
the board of directors of the Surviving Corporation or a corporation
beneficially owning, directly or indirectly, a majority or the Voting
Securities of the Surviving Corporation.




(A merger, consolidation or reorganization involving EOPT
which fails to satisfy the conditions described in clauses (A) and
(B) shall herein be referred to as a “Non-Control Transaction.”);


	(ii)
	 	A complete liquidation or dissolution of EOPT; or




	(iii)
	 	An agreement for the sale or other disposition of all or substantially
all of the assets of EOPT to any Person (other than to an entity of which
EOPT 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 EOPT 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 EOPT, and
after such share acquisition by EOPT, 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.




	(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.




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	(e)
	 	The appointment after May 22, 2002, of a new chief executive officer of
EOPT.




	(f)
	 	Notwithstanding anything contained in this Plan 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 Plan, 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.




        COC means the Compensation and Option Committee of the Board of Trustees
of EOPT.


        Code means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes reference to
any comparable or succeeding provisions of any legislation that amends,
supplements or replaces the section or subsection.


        Compensation means cash compensation payable by an Employer (before
deductions) for service performed for the Employer that currently would be
includable in gross income and consists of either the Participant’s (i) salary,
(ii) commissions, and/or (iii) incentive pay. In the case of an Eligible
Trustee, “Compensation” shall include Board and Committee fees paid in cash.


        Credited Service means the Participant’s Years of Credited Service as
calculated for purposes of the Qualified Plan.


        Elective Deferral means the portion of Compensation that is deferred by a
Participant pursuant to Section 4.1.


        Eligible Employee means those selected employees of the Employer whose
anticipated total annualized Compensation is not less than $160,000.


        Eligible Trustee means a member of EOPT’s Board of Trustees who, as
determined by the Chief Legal Counsel of EOPT, is not prevented from
participating pursuant to the terms governing the member’s Board service.


        Employer means EOPMC, EOPT, or each other entity affiliated with Equity
Office, and that adopts the Plan with the prior written consent of EOPT.


        Enrollment Form means the document(s) prescribed by the Plan Administrator
pursuant to which a Participant elects to defer Compensation and/or defer
income with respect to Restricted Shares, Share Options or Share Appreciation
Rights, and any other related elections pursuant to the Plan.


        Entry Date means (i) March 1; and (ii) in the case of an individual
described in Section 4.1(c)(ii), the effective date of the individual’s
Enrollment Form.


        EOPMC means Equity Office Properties Management Corp., a Delaware
corporation, and any successor entity thereto.


        EOPT means Equity Office Properties Trust, a Maryland real estate
investment trust, and any successor thereto.


        Equity Office means EOPT and EOPMC, collectively.


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        ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to any section or subsection of ERISA
includes reference to any comparable or succeeding provisions of any
legislation that amends, supplements or replaces that section or subsection.


        Insolvent means, with respect to an Employer, either (i) the Employer is
unable to pay its debts as they become due, or (ii) the Employer is subject to
a pending proceeding as a debtor pursuant to the United States Bankruptcy Code.


        Matching Contribution means a contribution by an Employer for the benefit
of a Participant who is an Eligible Employee, as described in Section 4.3.


        Participant means an individual who has an Account balance under the Plan.


        Plan means the Equity Office Properties Trust and Equity Office Properties
Management Corp. Supplemental Retirement Savings Plan, as set forth herein and
as amended from time to time.


        Plan Administrator means the Vice President-Human Resources and Employee
Development of EOPT and each other person, persons or entity designated by EOPT
to administer the Plan and to serve as the agent for the settlor of the
Trust(s) as contemplated by the agreement establishing the Trust(s), or an
alternate designated by EOPT with respect to any matters relating solely to the
Plan Administrator as a Participant. If no person is serving as the Vice
President-Human Resources and Employee Development at any time, EOPT shall be
the Plan Administrator.


        Plan Year means the 12-month period ending on December 31; provided that
the first Plan Year shall be the partial year November 1 through December 31,
1997.


        Qualified Plan means the Equity Office Properties Trust Retirement Savings
Plan.


        Restricted Share means a Share that is subject to a substantial risk of
forfeiture for purposes of Code § 83.


        Share means a share of beneficial interest, par value $ .01 per share, of
EOPT.


        Share Appreciation Right means a right to share in the appreciation of
Shares granted by EOPT.


        Share Option means an option granted by EOPT to purchase Shares.


        Share Deferral means the portion of a Share, Share Option or Share
Appreciation Right deferred by a Participant pursuant to Section 4.2.


        Total and Permanent Disability means a physical or mental condition that
entitles a Participant to benefits pursuant to the Employer-sponsored long-term
disability plan in which the Participant participates.


        Trust means the grantor trusts established by Equity Office, or each other
Employer, to hold assets contributed in accordance with the Plan.


        Trustee means the trustee or trustees of each Trust.


        Unforeseeable Emergency means a severe financial hardship of the
Participant or beneficiary resulting from:


	 	(a)
	 	an illness or accident of the Participant or
beneficiary, the Participant’s or beneficiary’s spouse, or the
Participant’s or beneficiary’s dependent (as defined in Code §
152(a));




	 	(b)
	 	loss of the Participant’s or beneficiary’s property due to
casualty; or




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	 	(c)
	 	other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control
of the Participant or beneficiary.




     Whether a Participant or beneficiary is faced with an unforeseeable
emergency permitting a distribution is to be determined based on the relevant
facts and circumstances, but, in any case, a distribution on account of
unforeseeable emergency may not be made to the extent that the emergency is or
may be relieved through reimbursement or compensation from insurance or
otherwise; by liquidation of the participant’s assets, to the extent the
liquidation of the assets would not itself cause severe financial hardship; or
by cessation of deferrals pursuant to the Plan. The definition of
“Unforeseeable Emergency” shall be consistent with the intent of Proposed
Treasury Regulation § 1.457-6(c)(2).


     Unrestricted Share means a Share that is not subject to a substantial risk
of forfeiture for purposes of Code § 83.


ARTICLE 3

PARTICIPATION



     3.1 Satisfaction of Eligibility Requirements


     Prior to the applicable Entry Date, the Plan Administrator shall determine
in its discretion the Eligible Employees and Eligible Trustees who may commence
participation in the Plan as of that Entry Date. Prior to each Plan Year, the
Plan Administrator shall determine in its discretion the Participants who may
continue their participation in the Plan for that Plan Year. The Plan
Administrator shall notify Eligible Employees and Eligible Trustees of their
eligibility to participate in the Plan and provide them with an Enrollment
Form. If the Plan Administrator determines that a Participant is not eligible
to participate in the Plan as of an upcoming Plan Year, the Participant shall
be subject to a suspension of participation as described in Section 3.4 below.


     3.2 Commencement of Participation


     An Eligible Employee or Eligible Trustee shall become a Participant on the
first date as of which an Elective Deferral, Share Deferral, or Matching
Contribution is credited to the Participant’s Account.


     3.3 Continued Participation


     Subject to Section 7.2, a Participant shall continue to be a Participant
so long as any amount remains credited to the Participant’s Account.


     3.4 Suspension of Participation


     If, pursuant to Section 3.1, the Plan Administrator determines that an
active Participant is no longer eligible to participate in the Plan, the Plan
Administrator shall notify the Participant, and the Participant’s Elective
Deferrals, Share Deferrals, and any related Matching Contributions, shall be
suspended until the next Plan Year that the Participant is eligible to
participate. If the Plan Administrator, pursuant to Section 3.1, determines
that the Participant again is eligible to participate, the Plan Administrator
shall notify the Participant, and the Participant shall be permitted to resume
active participation in the Plan as of the next Entry Date in the ensuing Plan
Year in accordance with Article 4. Upon a Participant’s resumption, EOPT
may contribute Matching Contributions to make up for any Matching
Contributions not made while participation was suspended.


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ARTICLE 4

ELECTIVE, SHARE AND MATCHING CONTRIBUTIONS



     4.1 Elective Deferrals


            (a) An individual who is an Eligible Employee or Eligible Trustee may
elect for any Plan Year to defer receipt of a whole percentage or whole dollar
amount of the Compensation otherwise payable to the individual, on and after a
subsequent Entry Date. For purposes of the foregoing, the Elective Deferral of
each Eligible Employee shall equal the lesser of (i) the elected percentage of
the individual’s Compensation or elected dollar amount, as the case may be; or
(ii) the entire amount of the individual’s Compensation remaining after (A) all
contributions that the Eligible Employee has elected pursuant to all other
retirement and welfare benefit plans maintained by Equity Office have been
deducted from the individual’s Compensation, and (B) deductions from
Compensation required by law, including Social Security and Medicare taxes. An
Eligible Employee or Eligible Trustee who desires to defer in accordance with
this Section shall complete and file an Enrollment Form with the Plan
Administrator. Notwithstanding any Plan provision to the contrary, an Eligible
Employee or Eligible Trustee may not reduce the percentage or dollar amount
elected for deferral.


            (b) Notwithstanding Section 4.1(a), an Eligible Employee or Eligible
Trustee may not defer any amount for a period of six months following the
Eligible Employee’s or Eligible Trustee’s receipt of a hardship withdrawal
pursuant to any qualified plan of the Employer.


            (c) Elections to defer Compensation must be made as described in
paragraphs (i), (ii), and (iii) below.


	 	(i)
	 	An Enrollment Form with respect to
salary, commissions, and Board and Committee fees, paid
for any Plan Year shall be filed on or before a deadline
established by the Plan Administrator, but in no event
later than the December 31 preceding the first day of
the Plan Year.




	 	(ii)
	 	Notwithstanding paragraph (i), in the
case of an individual who first becomes an Eligible
Employee or Eligible Trustee following the commencement
of a Plan Year, the Enrollment Form shall be effective
with respect to salary, commissions, and Board and
Committee fees, paid after the date the Enrollment Form
is filed, provided the Enrollment Form is filed within
30 days after the date the individual becomes an
Eligible Employee or Eligible Trustee.




	 	(iii)
	 	An Enrollment Form with respect to
incentive pay shall be filed no later than October 1 of
the Plan Year preceding the Plan Year in which the
incentive pay is otherwise payable; provided, however,




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in the case of an individual who first becomes an
Eligible Employee after October 1 of any Plan Year, the
Enrollment Form will be effective if it is filed no
later than 30 days after the individual becomes an
Eligible Employee and before the start of the Plan Year
in which the incentive pay is otherwise payable.


            (d) For each Plan Year, each Enrollment Form with respect to Compensation,
except for any Enrollment Form filed pursuant to Section 4.1(c)(iii), shall be
effective for all salary, commissions, and Board and Committee fees, paid to
the Participant filing the Enrollment Form on and after the Entry Date. Each
Enrollment Form with respect to Compensation, except for any Enrollment Form
filed pursuant to Section 4.1(c)(iii), shall also apply to Entry Dates in
subsequent Plan Years unless the Participant elects to file a new Enrollment
Form before the start of the subsequent Plan Year in accordance with Section
4.1, or until the time (if any) that the Participant is suspended from the
Plan, as provided pursuant to Section 3.4.


     4.2 Share Deferrals


            (a) Share Deferrals may be made by or for an Eligible Employee or Eligible
Trustee in accordance with the following:


                  (i) An individual who is an Eligible Employee or Eligible Trustee and who
has received (or is to receive) a Restricted Share, Share Option or Share
Appreciation Right, or is to receive an Unrestricted Share, may elect to defer
(A) with respect to an Unrestricted Share, the ownership thereof; (B) with
respect to a Restricted Share, the ownership of the Share when it is an
Unrestricted Share; or (C) with respect to the Share Option or Share
Appreciation Right, the ownership of the Shares or other proceeds on account of
an exercise thereof. An Eligible Employee or Eligible Trustee who desires to
elect a Share Deferral shall complete and file an Enrollment Form with the Plan
Administrator.


                  (ii) Board of Trustees or Board Committee fees paid in Unrestricted Shares
to Eligible Trustees shall be deferred hereunder. In addition, the COC may
cause any Share granted to an Eligible Employee or Eligible Trustee to be
deferred hereunder.


                  (iii) A Participant by or for whom a Share Deferral is made may also make
an election, applicable if the Trustee receives and complies with a
Participant’s request to invest the deferred amount in Shares, or receives a
request from the COC to invest in Shares, to have any dividends paid on these
Shares distributed to the Participant when received by the Trustee; provided
that, in the absence of an election, dividends shall be credited to the
Participant’s Account. Any election pursuant to this Section 4.2(a)(iii) shall
be made at the same time as the underlying Share Deferral election is made
pursuant to Section 4.2(b).


            (b) An election to defer pursuant to paragraph 4.2(a)(i) must be made (i)
with respect to an Unrestricted Share paid in connection with the Participant’s
bonus, no later than October 1 of the Plan Year preceding the Plan Year in
which the Unrestricted Share is otherwise awarded; (ii) with respect to any
other Unrestricted Share, no later than six months before it is awarded or sold
to the Participant; (iii) with respect to a Restricted Share, no later than
twelve months before the date it would become an Unrestricted Share; or (iv)
with respect to a Share


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Option or Share Appreciation Right, no later than six months before the
Share Option or Share Appreciation Right is exercised, or at any other time as
the Plan Administrator may specify. Deferrals are effective only if the
individual making the election is still an Eligible Employee or Eligible
Trustee on (I) in the case of a deferral of an Unrestricted Share, the date the
Share would otherwise be received by the Participant; (II) in the case of a
deferral of a Restricted Share, the date the Share would become an Unrestricted
Share; or (III) in the case of a deferral of a Share Option or Share
Appreciation Right, the date the Share Option or Share Appreciation Right is
exercised.


            (c) Except as provided in the last sentence of this paragraph, the Trustee
shall not be required to hold on behalf of a Participant any Unrestricted
Share, Restricted Share, Share Option or Share Appreciation Right deferred in
accordance with paragraph (a) above. Instead, the Trustee shall credit to the
Participant’s Account an amount equal to (i) in the case of an Unrestricted
Share or Restricted Share, the fair market value thereof on the date that the
Share would otherwise be received by the Participant (or in the case of a
deferral of a Restricted Share elected after the Share has been received, on
the date that the Enrollment Form is received by the Plan Administrator); and
(ii) in the case of a Share Option or Share Appreciation Right, the excess of
the fair market value of the underlying Shares over the exercise or base price
thereof on the date of exercise. The Participant may request, in accordance
with Section 5.3, that amounts credited to the Participant’s Account following
a Share Deferral be invested in Shares, provided that the Trustee shall have no
obligation to comply with the request. Notwithstanding the foregoing, in the
case of an Unrestricted Share paid to an Eligible Trustee or granted to an
Eligible Employee or Eligible Trustee, and automatically deferred as described
in Section 4.2(a)(ii), the Trustee shall invest the resulting amount credited
to the Participant’s Account in Shares, to the extent provided by the COC.


     4.3 Matching Contributions


            (a) The Employer shall contribute a Matching Contribution to the Account
of each Participant who is an Eligible Employee no later than the latest date
permitted by Code § 404 as applied to matching contributions made
pursuant to the Qualified Plan with respect to each Plan Year (or a later date
if the Plan Administrator so determines). The Matching Contribution for each
Eligible Employee for the Plan Year shall equal the excess of (i) the amount,
if any, by which the Eligible Employee’s matching contributions pursuant to the
Qualified Plan were reduced because of the operation of Code § 401(m), or
because the amount of the Participant’s elective contributions to the Qualified
Plan were reduced by operation of Code § 401(k)(3) (but considering all other
conditions, restrictions and provisions of the Code or the Qualified Plan);
over (ii) any amount paid to the Eligible Employee with respect to the Plan
Year by the Qualified Plan or the Employer to compensate or otherwise make up
for the reduction.


            (b) Notwithstanding paragraph (a) above, a Matching Contribution will be
made for an Eligible Employee for a Plan Year only if the Eligible Employee
would have been eligible to receive a matching contribution pursuant to the
Qualified Plan for the Plan Year.


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     4.4 Enrollment Forms


     All Enrollment Forms filed pursuant to Article 4 shall be irrevocable.
Notwithstanding the foregoing, a Participant incurring an Unforeseeable
Emergency may amend or revoke the Participant’s Enrollment Form (but only to
the extent reasonably needed to relieve the Unforeseeable Emergency) by filing
a new Enrollment Form. Any Enrollment Form that amends or revokes an existing
Enrollment Form shall be irrevocable as described in the first sentence of this
Section 4.4; provided, however, if the Enrollment Form was previously amended,
the Participant will be entitled to further amend or revoke the Enrollment Form
if the Participant incurs an Unforeseeable Emergency. If a Participant
transfers employment to another Employer, the Participant’s Share Deferrals
shall remain in effect, and the Participant’s Elective Deferrals shall remain
in effect for the remainder of the Plan Year. A Participant who transfers
employment to another Employer shall file a new Election Form with respect to
Elective Deferrals for the subsequent Plan Year.


ARTICLE 5

ACCOUNTS



     5.1 Accounts


            (a) The Plan Administrator shall establish an Account for each
Participant, on an Employer-by-Employer basis, reflecting Elective Deferrals,
Share Deferrals and Matching Contributions (if any) made for the Participant’s
benefit while employed and on the payroll of each Employer, together with any
adjustments for income, gains, losses, and any distributions from the Account.
Elective Deferrals, Share Deferrals and Matching Contributions (if any) shall
be credited to each Participant’s Account as of the date on which the amount
would have paid to the Participant absent the deferral election. As soon as
practicable following the last business day of each calendar quarter, the Plan
Administrator (or its designee) shall provide the Participant with a statement
of the Participant’s Account reflecting the income, gains and losses (realized
and unrealized), deferral amounts and distributions with respect to the Account
since the prior statement.


            (b) If a Participant transfers employment to another Employer, each
Employer shall maintain an Account for the Participant that reflects the
Elective Deferrals, Share Deferrals and Matching Contributions (if any) made
for the Participant’s benefit while employed and on the payroll of that
Employer, together with adjustments for any income, gains, losses and any
distributions from the Account.


     5.2 Trusts


     At its discretion, each Employer, jointly or severally, may establish one
or more trusts for the purpose of providing benefits pursuant to the Plan. Any
trust shall be irrevocable and the assets of the trust shall be subject to the
claims of the establishing Employer’s general creditors. To the extent any
benefits provided pursuant to the Plan are paid from an Employer’s trust, the
Employer maintaining that trust shall have no further obligation with respect
to the benefit payment; provided, however, to the extent benefits are not paid
from the Employer’s trust, the Employer, in accordance with Article 8, remains
liable for the payment of those benefits.


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     5.3 Investments


            (a) The assets of each Trust shall be invested in the investments the
Trustee shall determine. The Trustee may (but is not required to) consider the
Employer’s or a Participant’s investment preferences when investing the assets
attributable to a Participant’s Account. All Elective Deferrals contributed
pursuant to the Plan by Eligible Trustees shall be invested in Shares; provided
that, if amounts contributed by a Participant who is an Eligible Trustee are
being distributed in installments, then the Participant’s Account shall be
subject to the first two (2) sentences of this paragraph (a).


            (b) EOPT may, in its discretion, provide the Trustee with the opportunity
to purchase Shares at a discounted price on behalf of one (1) or more Eligible
Employees and/or Eligible Trustees, subject to conditions established by EOPT
(which may include the condition that any Eligible Employee has surrendered
other similar opportunities to purchase Shares). If the Employer provides an
opportunity, it will either sell the common Shares directly to the Trustee or
make cash contributions as necessary to permit the Trustee to buy the Shares on
the open market or from other sources. The Plan Administrator may impose
restrictions on the purchase of Shares in accordance with the Securities Act of
1933 and/or the Securities Exchange Act of 1934.


            (c) Subject to paragraph (a) above, a Participant may request that the
Trustee hold the following types of investments in the Participant’s Account:


	 	(i)
	 	Mutual funds (load or no-load)




	 	(ii)
	 	Securities traded on the NASDAQ
national market or a national securities exchange.




            (d) Expense charges for transactions performed for each Participant’s
Account shall be paid from each respective Account and will be listed on the
quarterly statement for the Account. Each Employer will pay all other Plan
charges and administrative expenses related to the Accounts of that Employer’s
Participants.


ARTICLE 6

VESTING



     6.1 General


            (a) A Participant shall at all times have a fully vested and
nonforfeitable right to all Elective Deferrals credited to the Participant’s
Account, adjusted for income, gain and loss attributable thereto.


            (b) A Participant shall become vested in the portion of the Participant’s
Account derived from a Share Deferral credited to his or her Account
attributable to a Restricted Share, adjusted for income, gain and loss
attributable thereto, at the same time the Restricted Share would have become
an Unrestricted Share.


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            (c) A Participant shall at all times have a fully vested and
nonforfeitable right to all Share Deferrals credited to Participant’s Account
and attributable to Unrestricted Shares, Share Options or Share Appreciation
Rights.


            (d) Subject to Sections 6.2, 6.3 and 6.4, a Participant shall become
vested in the portion of the Participant’s Account attributable to Matching
Contributions, adjusted for income, gain and loss attributable thereto, based
on the Participant’s years of Credited Service in accordance with the following
schedule:



	 	 	 	 	 	 
	Years of Credited Service	 	Vested Percentage
	
	 	

	0-1
	 	 	0 	%
	 	2
	 	 	25 	%
	 	3
	 	 	50 	%
	 	4
	 	 	75 	%
	 	5
	 	 	100 	%





     6.2 Change in Control


     A Participant who is then in the employ of an Employer shall become fully
vested in the Participant’s Account immediately prior to a Change in Control of
the Employer.


     6.3 Death or Disability


     A Participant shall become fully vested in the Participant’s Account
immediately prior to termination of the Participant’s employment by reason of
the Participant’s death or Total and Permanent Disability.


     6.4 Insolvency


     A Participant who is then in the employ of an Employer shall become fully
vested in the Participant’s Account immediately prior to his or her Employer’s
Insolvency, in which case the Participant will have the same rights as a
general unsecured creditor of the Employer with respect to the Participant’s
Account balance.


ARTICLE 7

PAYMENTS



     7.1 Election as to Time and Form of Payment


            (a) A Participant shall specify the date or age at which distributions
attributable to Elective Deferrals, Share Deferrals and Matching Contributions
made for any Plan Year, adjusted for income, gains and losses attributable
thereto, shall commence. The commencement date election shall be made on the
initial Enrollment Form filed pursuant to Sections 4.1 or 4.2, the special
Enrollment Form filed for deferrals pursuant to Section 4.2(a)(ii), or the
special Enrollment Form filed for Matching Contributions pursuant to Section
4.3, respectively, with respect to that Plan Year. If a Participant does not
elect a date or age on the


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applicable Enrollment Form, he or she may nonetheless, with the consent of
the Plan Administrator in its discretion, elect a date or age for distribution;
provided, however, the election shall not be effective unless it is made no
later than the December 31 that is at least twelve months before the
Participant’s termination date pursuant to Section 7.2. With the consent of
the Plan Administrator in its discretion, a Participant may change the
commencement date election; provided that a change shall not be effective
unless (i) the Participant changes the election to a date or age that is at
least two years later than the date or age previously elected; and (ii) the
change is made not later than the December 31 that is at least twelve months
before the date previously elected.


            (b) A Participant may elect pursuant to Section 7.1 that payments be made
in the form of either:


	 	(i)
	 	A single lump-sum payment; or




	 	(ii)
	 	Annual installments over a period
elected by the Participant of up to ten years, the
amount of each installment to equal the then balance of
the Account divided by the number of installments
remaining to be paid. The Participant may separately
designate the date or age of the initial payment and the
date or age that the remaining payments are to begin.




If a Participant does not elect a payment method on the applicable Enrollment
Form, the Participant may nonetheless, with the consent of the Plan
Administrator in its discretion, elect a payment method; provided, however,
that the election shall not be effective until the January 1 that is at least
twelve months after the date the election is filed with the Plan Administrator.
A Participant who wishes to change an existing payment method election may do
so; provided, however, that the new election shall not be effective until the
January 1 that is at least twelve months after the date the election is filed
with the Plan Administrator. Any change shall also apply to all previous
Enrollment Forms filed by the Participant to the extent that the change
satisfies the preceding sentence.


            (c) Except as provided in Sections 7.2, 7.3, 7.4, and 7.5, payments from a
Participant’s Account shall be made in accordance with the most recent
effective election made by the Participant pursuant to Section 7.1. If a
Participant has not elected a payment method, distribution shall be made in a
single lump sum upon the termination of the Participant’s employment.


            (d) Payments from a Participant’s Account shall be in cash or in kind
(comprising assets of the Trust(s)), as determined by the Trustee. The Trustee
may (but is not required to) consider the Employer’s or a Participant’s
preferences when determining the form in which payment is made from the
Participant’s Account.


     7.2 Termination of Service


     Upon termination of a Participant’s service as a member of EOPT’s Board of
Trustees, or termination of a Participant’s employment with all Employers, as
the case may be, for any reason other than death, the vested portion of the
Participant’s Account shall be paid to the Participant


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according to the Participant’s distribution election, unless the Plan
Administrator elects, in its sole discretion, to pay out a Participant’s
Account balance in a single lump sum as soon as practicable following the date
of termination. Equity Office shall have the right to offset against any
payments made to a Participant pursuant to this Section 7.2 an amount necessary
to reimburse Equity Office for the Participant’s liabilities or obligations to
Equity Office, including amounts misappropriated by the Participant, but only
if the Participant fails to pay the amounts to Equity Office in a timely manner
after payment has been duly demanded.


     7.3 Death


            (a) If a Participant dies prior to the complete distribution of the
Participant’s Account, the vested portion of the Participant’s Account shall be
paid to the Participant’s designated beneficiary or beneficiaries, according to
the Participant’s distribution election, unless the Plan Administrator elects,
in its sole discretion, to pay out a Participant’s Account balance in a single
lump sum as soon as practicable following the date of termination [death].


            (b) A Participant may designate a beneficiary by so notifying the Plan
Administrator in writing, at any time before Participant’s death, on a form
prescribed by the Plan Administrator for that purpose. A Participant may
revoke any beneficiary designation or designate a new beneficiary at any time
without the consent of a beneficiary or any other person. If no beneficiary is
designated or no designated beneficiary survives the Participant, payment shall
be made to the Participant’s surviving spouse, or, if none, to the
Participant’s issue per stirpes, in a single payment. If no spouse or issue
survives the Participant, payment shall be made in a single lump sum to the
Participant’s estate.


     7.4 Withdrawal Due to Unforeseeable Emergency


     If a Participant experiences an Unforeseeable Emergency, the Plan
Administrator, in its sole discretion, may pay to the Participant only that
portion, if any, of the vested portion of the Participant’s Account which the
Plan Administrator determines is necessary to satisfy the emergency need,
including any amounts necessary to pay any federal, state or local income taxes
reasonably anticipated to result from the distribution. A Participant
requesting an emergency payment shall apply for the payment in writing using a
form prescribed by the Plan Administrator for that purpose and shall provide
any additional information required by the Plan Administrator.


     7.5 Other Withdrawals


     Upon the request of a Participant, the Plan Administrator, in its sole
discretion, may pay to the Participant any amount up to the vested portion of
the Participant’s Account. A Participant requesting a withdrawal pursuant to
this Section 7.5 shall apply in writing on a form prescribed by the Plan
Administrator for that purpose, and shall provide any additional information
required by the Plan Administrator. The Plan Administrator will pay 90% of the
withdrawn amount to the Participant and the remaining 10% will be forfeited.
If a Participant receives a withdrawal pursuant to this Section 7.5, the Plan
Administrator will immediately terminate the Participant’s Elective Deferral
elections in effect at the time of the withdrawal and


15







 


prohibit any new Elective Deferrals and Share Deferrals by the Participant
until the second Plan Year following receipt of the withdrawal. A withdrawal
pursuant to this Section 7.5 will not affect any Share Deferral elections in
effect at the time of the withdrawal.


     7.6 Forfeiture of Non-Vested Amounts


     To the extent that any amounts credited to a Participant’s Account are not
vested at the time the amounts are otherwise payable pursuant to Sections 7.1
and 7.2, they shall be forfeited. Forfeited amounts, as well as forfeitures
pursuant to Section 7.5, shall be used to satisfy the Employer’s obligation to
contribute to its Trust provided for pursuant to the Plan.


     7.7 Taxes


     Income taxes and other taxes payable with respect to an Account shall be
deducted from the Account. All federal, state or local taxes that the Plan
Administrator determines are required to be withheld from any payments made
pursuant to this Article 7 shall be withheld.


ARTICLE 8

LIABILITY



     8.1 Employer Liability


     Each Employer has adopted this Plan as its own Plan. Accordingly,
liability for the payment of a Participant’s benefit pursuant to this Plan
shall be borne solely by the Employer that employs the Participant and reports
the Participant as being on its payroll during the accrual or increase of the
Plan benefit; provided, however, that liability for the payment of a
Participant’s benefit who is a Trustee shall be borne solely by the Employer
for which the Trustee serves during the accrual or increase in Plan benefit.
No liability for the payment of any Plan benefit shall be incurred by reason of
Plan sponsorship or participation except as provided in the preceding sentence;
provided, however, that each Employer, by adopting the Plan, agrees to assume
secondary liability for the payment of any benefit accrued or increased while
(i) a Participant is employed and on the payroll of an Employer that is a
Subsidiary of the Employer at the time the benefit is accrued or increased, or
(ii) a Trustee serves on the board of directors of an Employer that is a
Subsidiary of the Employer at the time the benefit is accrued or increased.
Notwithstanding this Section 8.1, any Employer or other person may expressly
agree to assume the liability for a Participant’s payment of any benefits
pursuant to this Plan.


     8.2 Successor Liability


     The obligations of an Employer pursuant to the Plan shall be binding upon
any successor corporation or organization resulting from the merger,
consolidation or other reorganization of the Employer, or upon any successor
corporation or organization succeeding to substantially all of the assets and
business of the Employer.


16







 


ARTICLE 9

PLAN ADMINISTRATOR



     9.1 Plan Administration and Interpretation


     The Plan Administrator shall oversee the administration of the Plan. The
Plan Administrator shall have complete control and authority to determine the
rights and benefits and all claims, demands and actions arising out of the
provisions of the Plan of any Participant, beneficiary, deceased Participant,
or other person having or claiming to have any interest pursuant to the Plan.
Notwithstanding any other provision of the Plan to the contrary, the Plan
Administrator shall have complete discretion to interpret the Plan and to
decide all matters pursuant to the Plan. Subject to Article 11, the Plan
Administrator’s interpretation and decision shall be final, conclusive and
binding on all Participants and any person claiming under or through any
Participant, in the absence of clear and convincing evidence that the Plan
Administrator acted arbitrarily and capriciously; provided, however, that any
interpretation and/or determination made by the Plan Administrator after the
occurrence of a Change in Control that denies in whole or in part any claim
made by any individual for benefits pursuant to the Plan shall be subject to
judicial review, pursuant to a “de novo,” rather than a deferential, standard.
Any individual(s) serving as Plan Administrator who is also a Participant shall
not vote or act on any matter relating solely to himself or herself. When
making a determination or calculation, the Plan Administrator shall be entitled
to rely on information furnished by a Participant, a beneficiary, the Employer
or the Trustee. The Plan Administrator shall have the responsibility for
complying with any reporting and disclosure requirements of ERISA.


     9.2 Powers, Duties, Procedures


     The Plan Administrator shall have the powers and duties, may adopt rules
and tables, may act in accordance with these procedures, may appoint officers
or agents, may delegate powers and duties, may receive reimbursements and
compensation, and shall follow claims and appeal procedures with respect to the
Plan as the Plan Administrator may establish.


     9.3 Information


     To enable the Plan Administrator to perform its functions, the Employer
shall supply full and timely information to the Plan Administrator on all
matters relating to the compensation of Participants, their employment,
retirement, death, termination of employment, and any other pertinent facts as
the Plan Administrator may require.


     9.4 Indemnification of Plan Administrator


     The Employers agree to indemnify and to defend to the fullest extent
permitted by law any officer(s) or employee(s) who serve as Plan Administrator
(including any individual who formerly served as Plan Administrator) against
all liabilities, damages, costs and expenses (including reasonable attorneys’
fees and amounts paid in settlement of any claims approved by the Employer in
writing in advance) occasioned by any act or omission to act in connection with
the Plan, if the act or omission is in good faith.



17







 


ARTICLE 10

AMENDMENT AND TERMINATION



     10.1 Amendments


     The COC shall have the right to amend the Plan from time to time, subject
to Section 9.3, by an instrument in writing executed on behalf of EOPT, by an
officer duly authorized by the COC; provided, however, that the Plan may not be
amended after a Change in Control without the written consent of at least: (i)
two-thirds in number of the Plan Participants; and (ii) two-thirds in number of
the Plan Participants with the ten largest Account balances.


     10.2 Termination of Plan


     The Plan is strictly a voluntary undertaking on the part of each Employer
and shall not be deemed to constitute a contract between the Employer and any
Eligible Employee (or any other employee) or any Eligible Trustee,
consideration for, or an inducement or condition of employment for, the
performance of the services by any Eligible Employee (or other employee) or any
Eligible Trustee. The COC may terminate the Plan at any time, subject to
Section 9.3, by an instrument in writing that has been executed on behalf of
EOPT by an officer duly authorized by the COC; provided, however, that the Plan
may not be terminated after a Change in Control without the written consent of
at least: (i) two-thirds in number of the Plan Participants; and (ii)
two-thirds in number of the Plan Participants with the ten largest Account
balances. Upon termination of the Plan, the COC may (a) continue to maintain
the Trust(s) to pay benefits as they become due as if the Plan had not
terminated or (b) direct the Trustee to pay promptly to the Participants (or
their beneficiaries) the vested balance of their Accounts. For purposes of the
preceding sentence, in the event clause (b) is implemented, the Account balance
of all Participants who are in the employ of the Employer at the time the
Trustee is directed to pay the balances shall become fully vested and
nonforfeitable. After Participants and their beneficiaries are paid all Plan
benefits to which they are entitled, all remaining assets of the Trust
attributable to Participants who terminated employment with the Employer prior
to termination of the Plan and who were not fully vested in their Accounts
pursuant to Article 6 at that time shall be returned to the Employer.


     10.3 Existing Rights


     No amendment or termination of the Plan shall adversely affect the rights
of any Participant with respect to amounts that have been credited to a
Participant’s Account prior to the date of the amendment or termination.


ARTICLE 11

CLAIMS PROCEDURE



     11.1 Denial of Claim


     Any person claiming a benefit pursuant to the Plan shall present the
request in writing to the Plan Administrator. The Plan Administrator shall
give any Participant whose application for


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benefits pursuant to the Plan has been denied, in whole or in part, a
written denial of benefit notice. The Plan Administrator shall provide the
denial of benefit notice within 90 days after the claim is received by the
Plan, unless special circumstances require an extension of time for processing
the claim. If an extension of time is required, the Plan Administrator shall
provide the Participant written notice of the extension before the expiration
of the initial 90-day period; provided, however, in no event shall the
extension exceed a period of 90 days from the end of the initial period.


     The notice provided in the foregoing paragraph shall be written in easily
understood language and shall indicate the specific reasons for denial and the
specific Plan provisions on which the denial is based. The notice shall
explain that the Participant may request a review of the denial, the procedures
for requesting a review, and the Participant’s right to bring a civil action
pursuant to ERISA § 502(a) following an adverse benefit determination on
review. The notice shall describe any additional information necessary to
approve the Participant’s claim and explain why the information is necessary.


     11.2 Review of Claim


     A Participant may make a written request to the Plan Administrator for a
review of any denial of benefits under the Plan. The written request shall be
made within 60 days after the receipt of the notice of denial.


     A Participant who requests a review of a denial of benefits in accordance
with this review procedure may examine pertinent documents and submit pertinent
issues and comments in writing. A Participant may have a representative act on
his behalf in exercising his right to request a review and the rights granted
by this review procedure. The review shall take into account all comments,
documents, and other information submitted by the Participant relating to the
claim, without regard to whether the information was submitted or considered in
the initial benefit determination.


     The Plan Administrator shall provide the Participant its determination on
review within 60 days after receiving the written request for review, unless
the Plan Administrator determines that special circumstances require an
extension of time for processing the claim. If the Plan Administrator
determines that an extension of time for processing is required, written notice
of the extension shall be furnished prior to the end of the initial 60-day
period; provided, however, that in no event shall the extension exceed a period
of 60 days from the end of the initial period.


     In the case of an adverse determination on review, the notice provided in
the foregoing paragraph shall be written in easily understood language and
shall indicate the specific reasons for the adverse determination and the
specific Plan provisions on which the benefit determination is based. The
notice shall explain that the Participant is entitled to receive, upon request
and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to a claim for benefits and the
Participant’s right to bring a civil action pursuant to ERISA § 502(a)
following the adverse benefit determination on review.


19







 


ARTICLE 12

MISCELLANEOUS



     12.1 No Funding


     The Plan constitutes a mere promise by the Employer to make payments in
accordance with the terms of the Plan and Participants and beneficiaries shall
have the status of general unsecured creditors of the Employer. Nothing in the
Plan will be construed to give any employee or any other person rights to any
specific assets of the Employer or of any other person. In all events, it is
the intent of the Employer that the Plan be treated as unfunded for tax
purposes and for purposes of Title I of ERISA.


     12.2 Non-Assignability


     Except for a domestic relations order that the Plan Administrator
determines satisfies Code § 414(p) and provides for immediate distribution to
the “alternate payee” as defined in Code § 414(p)(8), none of the benefits,
payments, proceeds or claims of any Participant or beneficiary shall be subject
to any claim of any creditor of any Participant or beneficiary and, in
particular, the same shall not be subject to attachment or garnishment or other
legal process by any creditor of the Participant or beneficiary, nor shall any
Participant or beneficiary have any-right to alienate, anticipate, commute,
pledge, encumber, transfer or assign any Plan benefits, payments, or proceeds
which he or she may receive.


     12.3 Limitation of Participant’s Rights


     Nothing contained in the Plan shall confer upon any person a right to be
employed or to continue in the employ of an Employer or on the Board of
Trustees of EOPT, or interfere in any way with the right of an Employer to
terminate the employment of a Participant in the Plan at any time, with or
without cause.


     12.4 Participants Bound


     Any action with respect to the Plan taken by the Plan Administrator or the
Trustee or any action authorized by or taken at the direction of the Plan
Administrator, an Employer or the Trustee shall be conclusive upon all
Participants and beneficiaries entitled to benefits pursuant to the Plan.


     12.5 Receipt and Release


     Any payment to any Participant or beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims against an Employer, the Plan Administrator and the Trustee pursuant
to the Plan, and the Plan Administrator may require the Participant or
beneficiary, as a condition precedent to the payment, to execute a receipt and
release to that effect. If any Participant or beneficiary is determined by the
Plan Administrator to be incompetent by reason of physical or mental disability
(including minority) to give a valid receipt and release, the Plan
Administrator may cause the payment or payments becoming due to the person to
be made to another person for his or her benefit without responsibility on the
part of the Plan Administrator, an Employer or the Trustee to follow the
application of the funds.


20







 


     12.6 Governing Law


     The Plan shall be construed, administered, and governed in all respects
pursuant to and by the laws of the State of Illinois. If any provision shall
be held by a court of competent jurisdiction to be invalid or unenforceable,
the remaining provisions hereof shall continue to be fully effective.


     12.7 Headings and Subheadings


     Headings and subheading in this Plan are inserted for convenience only and
are not to be considered in the construction of the provisions hereof.


     IN WITNESS WHEREOF, the undersigned officer of EOPT has executed this
document to certify its adoption by EOPT as of the effective date provided
herein.



	 	 	 	 	 
	 	 	EQUITY OFFICE PROPERTIES TRUST
	 	 	 	 	 
	 	 	
By:
	 	/s/ Stanley M. Stevens
	 	 	 	 	

	 	 	
Name:
	 	Stanley M. Stevens
	 	 	
Title:
	 	Executive Vice President, Chief Legal
	 	 	 	 	Counsel and Secretary







21