Exhibit 10.35


 


Equity Residential


Supplemental
Executive Retirement Savings Plan


As
Amended and Restated


Effective
January 1, 2003


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1 

  	
   

  	
  INTRODUCTION

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Purpose of Plan

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Status of P1an

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Account

  	
   

  	
  1

  
	
  2.2

  	
   

  	
  Change Form

  	
   

  	
  2

  
	
  2.3

  	
   

  	
  Change of
  Control

  	
   

  	
  2

  
	
  2.4

  	
   

  	
  Code

  	
   

  	
  2

  
	
  2.5

  	
   

  	
  Compensation

  	
   

  	
  2

  
	
  2.6

  	
   

  	
  Credited Service

  	
   

  	
  2

  
	
  2.7

  	
   

  	
  Educational
  Account

  	
   

  	
  3

  
	
  2.8

  	
   

  	
  Elective
  Deferral

  	
   

  	
  3

  
	
  2.9

  	
   

  	
  Eligible
  Employee

  	
   

  	
  3

  
	
  2.10

  	
   

  	
  Eligible Trustee

  	
   

  	
  3

  
	
  2.11

  	
   

  	
  Employer

  	
   

  	
  3

  
	
  2.12

  	
   

  	
  Enrollment Form

  	
   

  	
  3

  
	
  2.13

  	
   

  	
  Entry Date

  	
   

  	
  3

  
	
  2.14

  	
   

  	
  EQR

  	
   

  	
  3

  
	
  2.15

  	
   

  	
  ERISA

  	
   

  	
  3

  
	
  2.16

  	
   

  	
  Extended Company

  	
   

  	
  4

  
	
  2.17

  	
   

  	
  Funding Trust

  	
   

  	
  4

  
	
  2.18

  	
   

  	
  Funding Trustee

  	
   

  	
  4

  
	
  2.19

  	
   

  	
  Insolvent

  	
   

  	
  4

  
	
  2.20

  	
   

  	
  Normal
  Retirement Age

  	
   

  	
  4

  
	
  2.21

  	
   

  	
  Matching Deferral

  	
   

  	
  4

  
	
  2.22

  	
   

  	
  Participant

  	
   

  	
  4

  
	
  2.23

  	
   

  	
  Plan

  	
   

  	
  4

  
	
  2.24

  	
   

  	
  Plan
  Administrator

  	
   

  	
  5

  
	
  2.25

  	
   

  	
  Plan Year

  	
   

  	
  5

  
	
  2.26

  	
   

  	
  Qualified Plan

  	
   

  	
  5

  
	
  2.27

  	
   

  	
  Restricted Share

  	
   

  	
  5

  
	
  2.28

  	
   

  	
  Share

  	
   

  	
  5

  
	
  2.29

  	
   

  	
  Share
  Appreciation Right

  	
   

  	
  5

  
	
  2.30

  	
   

  	
  Share Option

  	
   

  	
  5

  
	
  2.31

  	
   

  	
  Share Deferral

  	
   

  	
  5

  
	
  2.32

  	
   

  	
  Total and
  Permanent Disability

  	
   

  	
  5

  
	
  2.33

  	
   

  	
  Unforeseeable
  Emergency

  	
   

  	
  5

  
	
  2.34

  	
   

  	
  Unrestricted
  Share

  	
   

  	
  6

  



 

















 


	
  ARTICLE 3

  	
   

  	
  PARTICIPATION

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Satisfaction of
  Eligibility Requirements

  	
   

  	
  6

  
	
  3.2

  	
   

  	
  Commencement of
  Participation

  	
   

  	
  7

  
	
  3.3

  	
   

  	
  Continued
  Participation

  	
   

  	
  7

  
	
  3.4

  	
   

  	
  Suspension of
  Participation

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  ELECTIVE AND MATCHING DEFERRALS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1

  	
   

  	
  Elective
  Deferrals

  	
   

  	
  8

  
	
  4.2

  	
   

  	
  Share Deferrals

  	
   

  	
  10

  
	
  4.3

  	
   

  	
  Matching
  Deferrals

  	
   

  	
  11

  
	
  4.4

  	
   

  	
  Enrollment Forms

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  ACCOUNTS

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1

  	
   

  	
  Accounts

  	
   

  	
  13

  
	
  5.2

  	
   

  	
  Educational
  Account

  	
   

  	
  13

  
	
  5.3

  	
   

  	
  Investments

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  VESTING

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  General

  	
   

  	
  16

  
	
  6.2

  	
   

  	
  Change of
  Control

  	
   

  	
  17

  
	
  6.3

  	
   

  	
  Death or
  Disability

  	
   

  	
  17

  
	
  6.4

  	
   

  	
  Insolvency

  	
   

  	
  17

  
	
  6.5

  	
   

  	
  Normal
  Retirement Age

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
  PAYMENTS

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Election as to
  Time and Form of Payment

  	
   

  	
  18

  
	
  7.2

  	
   

  	
  Termination of
  Service

  	
   

  	
  21

  
	
  7.3

  	
   

  	
  Death

  	
   

  	
  21

  
	
  7.4

  	
   

  	
  Withdrawal Due
  to Unforeseeable Emergency

  	
   

  	
  22

  
	
  7.5

  	
   

  	
  Withdrawal Due
  to Educational Expense

  	
   

  	
  23

  
	
  7.6

  	
   

  	
  Other
  Withdrawals

  	
   

  	
  24

  
	
  7.7

  	
   

  	
  Forfeiture of
  Non-Vested Amounts

  	
   

  	
  24

  
	
  7.8

  	
   

  	
  Taxes

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  PLAN ADMINISTRATOR

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Plan
  Administration and Interpretation

  	
   

  	
  25

  
	
  8.2

  	
   

  	
  Powers, Duties,
  Procedures, Etc.

  	
   

  	
  26

  
	
  8.3

  	
   

  	
  Information

  	
   

  	
  26

  
	
  8.4

  	
   

  	
  Indemnification
  of Plan Administrator

  	
   

  	
  26

  



 


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  ARTICLE 9

  	
   

  	
  CLAIMS PROCEDURES

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  	
  AMENDMENT AND TERMINATION

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.1

  	
   

  	
  Amendment

  	
   

  	
  28

  
	
  10.2

  	
   

  	
  Termination of
  Plan

  	
   

  	
  28

  
	
  10.3

  	
   

  	
  Existing Rights

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.1

  	
   

  	
  No Funding

  	
   

  	
  29

  
	
  11.2

  	
   

  	
  Non-assignability

  	
   

  	
  30

  
	
  11.3

  	
   

  	
  Limitation of
  Participant’s Rights

  	
   

  	
  30

  
	
  11.4

  	
   

  	
  Participants
  Bound

  	
   

  	
  30

  
	
  11.5

  	
   

  	
  Receipt and
  Release

  	
   

  	
  31

  
	
  11.6

  	
   

  	
  Governing Law

  	
   

  	
  31

  
	
  11.7

  	
   

  	
  Headings and
  Subheadings

  	
   

  	
  31

  



 


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ARTICLE 1


 


INTRODUCTION


1.1                               Purpose of
Plan


 


EQR initially adopted the Plan to
provide a means by which certain employees could elect to defer receipt of
portions of their Compensation and to provide opportunities for such
individuals to save for retirement and for the education of their children. As
first amended and restated, the Plan also provides for the participation of
non-employee trustees on the terms and conditions set forth herein. This
amendment and restatement shall apply to eligible employees and trustees from
and after January 1, 2003.


 


1.2                               Status of
P1an


 


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
Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, 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:


 


2.1                               Account means, for each Participant, the account established
for his or her benefit under Section 5.1.


 

















 


2.2                               Change Form means
the document or documents prescribed by the Plan Administrator and pursuant to
which a Participant may change elections made on an Enrollment Form.


 


2.3                               Change of Control means (i) the acquisition by any entity, person,
or group of more than 50% of the outstanding Shares from the holders thereof; (ii) a
merger or consolidation of EQR with one or more other entities as a result of
which the ultimate holders of outstanding Shares immediately prior to such
merger hold less than 50% of the shares of beneficial ownership of the
surviving or resulting corporation; or (iii) a transfer of substantially
all of the property of EQR other than to an entity of which EQR directly or
indirectly owns at least 50% of the shares of beneficial ownership.


 


2.4                               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 which amends, supplements or replaces such section or
subsection.


 


2.5                               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 may consist of either the Participant’s (i) salary,
(ii) commissions, and/or (iii) incentive pay. In the case of an
Eligible Trustee, “Compensation” means all cash remuneration otherwise payable
to him or her for service as a member of the Board of Trustees, including but
not limited to any retainer and committee or chair fees.


 


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


 


2

















 


2.7                               Educational
Account means an account established by a Participant pursuant to Section 5.2,
for the use described therein.


 


2.8                               Elective Deferral means the portion of Compensation which is deferred by
a Participant under Section 4.1.


 


2.9                               Eligible Employee means, on any Entry Date, those employees of an
Employer whose anticipated total annualized Compensation is not less than
$80,000.


 


2.10                        Eligible Trustee means, on any Entry Date, a member of the Board of
Trustees of EQR who is not an employee of EQR.


 


2.11                        Employer means Equity Residential, Equity Residential
Properties Management Limited Partnership, Equity Residential Properties
Management Limited Partnership II, Equity Residential Properties Management
Corp. and each other entity that is affiliated with EQR and that adopts the
Plan with the consent of EQR.


 


2.12                        Enrollment Form means
the document or documents prescribed by the Plan Administrator and pursuant to
which a Participant may make elections to defer Compensation and/or defer
income with respect to Shares, Restricted Shares, Share Options or Share
Appreciation Rights, and related elections, hereunder.


 


2.13                        Entry Date means (i) January 1 of each Plan Year; and (ii) in
the case of an individual described in clause Section 4.1(b)(iii), the
date as of which his or her Enrollment Form is effective as described
therein.


 


2.14                        EQR means Equity Residential, and any successor thereto.


 


2.15                        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


 


3

















 


reference
to any comparable or succeeding provisions of any legislation that amends,
supplements or replaces such section or subsection.


 


2.16                        Extended Company means an Employer and any other entity so designated
by the Plan Administrator, but only if such other entity maintains a
non-qualified deferred compensation arrangement that provides that if an
employee terminates his or her employment with the entity and immediately
accept a position with EQR, his or her employment is not treated as having
terminated for purposes of distributions under such arrangement. The Plan
Administrator may change the entities designated as Extended Companies
from time to time as it deems appropriate.


 


2.17                        Funding Trust means the grantor trust established by EQR to hold
assets contributed under the Plan.


 


2.18                        Funding Trustee means the trustee or trustees under the Funding Trust.


 


2.19                        Insolvent means 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 under the United States Bankruptcy Code.


 


2.20                        Normal
Retirement Age means age sixty-five (65).


 


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


 


2.22                        Participant means any individual who participates in the Plan in
accordance with Article 3.


 


2.23                        Plan means the Equity Residential Supplemental Executive
Retirement Savings Plan as amended and restated herein, and as further amended
from time to time.


 


4

















 


2.24                        Plan Administrator means the Senior Vice President, Human Resources, or
such other person, persons or entity designated by EQR to administer the Plan
and to serve as the agent for the settlor of the Funding Trust as contemplated
by the agreement establishing the Funding Trust. If no such person or entity is
so serving at any time, EQR shall be the Plan Administrator.


 


2.25                        Plan Year means the l2-month period ending on December 3l.


 


2.26                        Qualified Plan means the Equity Residential ADVANTAGE Retirement
Savings Plan.


 


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


 


2.28                        Share means a share
of beneficial interest, par value $.0l per share, of EQR.


 


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


 


2.30                        Share Option means an option to
purchase Shares granted by EQR.


 


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


 


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


 


2.33                        Unforeseeable Emergency means an immediate and heavy financial need resulting
from any of the following:


 


5

















 


(a)                                  Expenses which are not covered
by insurance and which the Participant or his or her spouse or dependent has
incurred as a result of, or is required to incur in order to receive, medical
care;


 


(b)                                 The need to prevent
eviction of a Participant from his or her principal residence or foreclosure on
the mortgage of the Participant’s principal residence; or


 


(c)                                  Any other circumstance
that is determined by the Plan Administrator in its sole discretion to
constitute an unforeseeable emergency that (i) is not covered by
insurance, (ii) cannot reasonably be relieved by the liquidation of the
Participant’s assets, and (iii) is consistent with the intent of Treasury
Regulation Section 1.457-2(h)(4).


 


2.34                        Unrestricted Share means a Share that is subject to Section 83 of
the Code and is not subject to a substantial risk of forfeiture.


 


ARTICLE 3


 


PARTICIPATION


 


3.1                               Satisfaction
of Eligibility Requirements


 


Prior to each Entry Date, the Plan
Administrator shall determine in its discretion the identity of those Eligible
Employees and Eligible Trustees, including any retired officers or trustees,
who may commence or continue their participation in the Plan as of such
Entry Date. The Plan Administrator will 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
currently making Elective Deferrals, Share Deferrals or Matching Deferrals is
not eligible to participate in the Plan as of an upcoming Entry Date because he
or she no longer satisfies the eligibility requirements described in Section 2.9
or 2.10 (as


 


6

















 


applicable),
the Participant will 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 in the Plan on the first date as of which an
Elective Deferral, Share Deferral, or Matching Deferral is credited to his or
her Account.


 


3.3                               Continued
Participation


 


A Participant in the Plan shall
continue to be a Participant so long as any amount remains credited to his or
her Account.


 


3.4                               Suspension
of Participation


 


If, pursuant to Section 3.1, the
Plan Administrator determines that an active Participant no longer satisfies
the eligibility requirements of Section 2.9 or 2.10 (as applicable), the
Plan Administrator shall notify the Participant, and the Participant’s Elective
Deferrals, Share Deferrals and Matching Deferrals shall be suspended until the
next following Entry Date as of which the Participant again satisfies Section 2.9
or 2.10 (as applicable). If the Plan Administrator, pursuant to Section 3.1,
determines that the Participant again satisfies the eligibility requirements of
Section 2.9 or 2.10 (as applicable), the Plan Administrator shall notify
the Participant, and the Participant shall be permitted to resume active
participation in the Plan as of the next following Entry Date in accordance
with Article 4. Upon such resumption, EQR may make Matching Deferrals
for such Participant to make up for any Matching Deferrals not made while his
or her participation was suspended.


 


7

















 


ARTICLE 4


 


ELECTIVE AND MATCHING DEFERRALS


 


4.1                               Elective
Deferrals


 


(a)                                  An individual who is an
Eligible Employee or Eligible Trustee may elect to defer receipt of a
whole percentage or whole dollar amount of up to 25% (or 100% in the case of an
Eligible Trustee) of the Compensation (exclusive of any bonus) otherwise payable
to him or her, on and after a subsequent Entry Date for the applicable Plan
Year. In addition, subject to the provisions of subsection (b)(iii) below,
an Eligible Employee may elect to defer up to 100% of any incentive pay
Compensation payable during a Plan Year. For purposes of the foregoing, the
Elective Deferral of each Eligible Employee will equal the greater of (i) the
elected percentage of his or her Compensation or elected dollar amount, as the
case may be; or (ii) the entire amount of his or her Compensation
remaining after (A) all contributions that the Eligible Employee has
elected to make under all other retirement and welfare benefit plans maintained
by his or her Employer have been deducted from his or her Compensation, and (B) deductions
from Compensation required by law, including Social Security and Medicare taxes.
An Eligible Employee or Eligible Trustee who desires to elect such a deferral
shall complete and file an Enrollment Form with the Plan Administrator.


 


(b)                                 Each Enrollment Form shall
be effective as described in clauses (i), (ii), (iii) and (iv) below.


 


(i)                                     An Enrollment Form with
respect to salary and commissions paid from and after the Entry Date in any
Plan Year shall be filed on or before a deadline established by the Plan Administrator
for the


 


8

















 


applicable Plan Year, but in no event
later than the December 31 that precedes the first day of such Plan Year.


 


(ii)                                  Notwithstanding clause
(i), in the case of an individual who first becomes an Eligible Employee or
Eligible Trustee following the commencement of the Plan Year, the Enrollment Form will
be effective with respect to salary and commissions received after the date the
Enrollment Form is filed, if it 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 on or before October 1 of the Plan
Year preceding the Plan Year in which the incentive pay is otherwise payable;
provided that, 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 he or she becomes an
Eligible Employee and before the start of the Plan Year in which the incentive
pay is otherwise payable.


 


(c)                                  Each Enrollment Form shall
be effective for all Compensation to be paid to the Participant filing such
Enrollment Form from and after the Entry Date to which such Enrollment Form applies.
An election to defer salary or commissions also shall apply from and after
subsequent Entry Dates unless changed as provided herein, or until such time
(if any) that the Participant is suspended from the Plan, as provided under Section 3.4
or Section 7.6.


 


9

















 


(d)                                 A Participant who is an
Eligible Employee and for whom a deferral election is or will be effective as
of a January 1 Entry Date will be required to have Elective Deferrals
contributed pursuant to this Plan transferred to the Qualified Plan as salary
deferrals as of the end of the Plan Year, if and to the extent allowable under
the Qualified Plan. The Plan Administrator may determine which investments
shall be liquidated for this contribution and shall direct the Funding Trustee
to transfer such Elective Deferrals as soon as possible after
non-discrimination tests and other compliance matters have been completed for
the Qualified Plan for such Plan Year.


 


4.2                               Share
Deferrals


 


(a)                                  An individual who is an
Eligible Employee 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 (i) with
respect to a Restricted Share, the ownership of the Share when it is an
Unrestricted Share; or (ii) with respect to the Share Option or Share
Appreciation Right, the ownership of the Shares or other proceeds of an
exercise thereof. An Eligible Employee who desires to elect a Share Deferral
shall complete and file an Enrollment Form with
the Plan Administrator. The Participant may also make an election,
applicable if the Funding Trustee receives and complies with a Participant’s
request to invest the deferred amount in Shares, to either have any dividends
paid on such Shares credited to his or her Account or distributed to the
Participant when received by the Funding Trustee.


 


(b)                                 An election pursuant to
paragraph (a) must be made (i) with respect to a Restricted Share, at
least twelve months before the date it would become an Unrestricted Share; or (ii) with
respect to a Share Option or Share Appreciation Right, at least twelve months
prior to the date the Share Option or Share Appreciation Right is exercised, or
at such other time as


 


10

















 


the Plan Administrator may specify.
Deferrals will only be effective if the individual making the election is still
an Eligible Employee or Eligible Trustee on (i) in the case of a deferral
of a Restricted Share, the date such Share would become an Unrestricted Share;
or (ii) in the case of a deferral of a Share Option or Share Appreciation
Right, the date that a Share Option or Share Appreciation Right is exercised.


 


(c)                                  Notwithstanding the
foregoing provisions of this Section 4.2, the Funding Trustee shall not be
required to hold on behalf of a Participant any Unrestricted Share, Restricted
Share, Share Option or Share Appreciation Right deferred by the Participant in
accordance with paragraph (a) above. Instead, the Funding 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 his or her Account following a Share Deferral be invested in
Shares, provided that the Funding Trustee shall have no obligation to comply
with such request.


 


4.3                               Matching
Deferrals


 


(a)                                  Not later than the latest
date permitted by Section 404 of the Code for matching contributions under
the Qualified Plan with respect to each Plan Year thereunder (or such later
date that the need for a Matching Deferral is determined), the Employer shall
contribute a Matching Deferral to the Account of each Participant who is an
Eligible Employee,


 


11

















 


if required by the next sentence. The
Matching Deferral 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 under the Qualified Plan were reduced because of the
operation of Section 401(m) of the Code, or because the amount of his or
her elective contributions to the Qualified Plan were reduced by operation of
or to comply with Section 401(k)(3) of the Code (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
such Plan Year by the Qualified Plan or the Employer to compensate or otherwise
make up for such reduction.


 


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


 


4.4                               Enrollment
Forms


 


All Enrollment Forms filed pursuant to
Article 4 shall be irrevocable (i) with respect to Elective Deferrals
under Section 4.1, except as provided therein; and (ii) for Share
Deferrals under Section 4.2, with respect to the Unrestricted Share,
Restricted Share, Share Option or Share Appreciation Right subject thereto. Notwithstanding
the foregoing, if a Participant incurs an Unforeseeable Emergency, he or she may file
a Change Form to revoke his or her Enrollment Form (but only to the
extent reasonably needed to relieve the Unforeseeable Emergency). Any Change Form that
revokes an Enrollment Form shall be effective as described in the first
sentence of this Section 4.4.


 


12

















 


ARTICLE 5


 


ACCOUNTS


 


5.1                               Accounts


 


The Plan Administrator shall establish an Account
for each Participant reflecting Elective Deferrals, Share Deferrals and
Matching Deferrals (if applicable) made for the Participant’s benefit together
with any adjustments for income, gain or loss and any payments from the
Account. Elective Deferrals, Share Deferrals and Matching Deferrals will be
credited to the Account of each applicable Participant as of the later of the
date they are received by the Funding Trustee or the date the Funding Trustee
receives from the Plan Administrator such instructions as the Funding Trustee may reasonably
require to allocate the amount received among the investments maintained by the
Funding Trustee. A Participant’s Account shall also include any Educational
Account established pursuant to Section 5.2. 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 such Participant’s Account reflecting the income, gains and losses (realized
and unrealized), amounts of deferrals and distributions with respect to such
Account since the prior statement.


 


5.2                               Educational Account


 


(a)                                  An Eligible Employee or an Eligible Trustee may transfer
any vested portion of his or her Plan Account into an Educational Account in
accordance with this Section 5.2.


 


(b)                                 An Educational Account may be
established for any adopted or natural-born child of an Eligible Employee in
order to finance such child’s post-secondary undergraduate or graduate level
education. An Eligible Employee wishing to establish an


 


13

















 


Educational
Account shall so notify the Plan Administrator in writing, on a form prescribed
by the Plan Administrator for that purpose, no later than:  (i) with respect to an Educational
Account established to finance a child’s undergraduate education, the beginning
of the child’s last full academic year of high school (or comparable)
education, or (ii) with respect to an Educational Account established to
finance a child’s graduate education, the beginning of the child’s last full
academic year of undergraduate education.


 


(c)                                  All or part of the balance of an
Eligible Employee’s Educational Account, adjusted for earnings, gains and
losses, may be withdrawn by the Eligible Employee on a quarterly basis to
pay expenses related to tuition, books, lodging and meals in connection with
the post-secondary undergraduate or graduate-level education (as applicable) of
the child with respect to whom the Account was established, to the extent
incurred at an accredited institution of higher learning; provided, however,
that lodging expenses incurred as a result of the child’s residence in a home
owned directly or indirectly by the Eligible Employee shall not be reimbursed.
Distribution of the balance of an Educational Account shall be governed by Section 7.5.


 


5.3                               Investments


 


(a)                                  The assets of the Funding Trust shall be
invested in such investments, including Shares, as the Funding Trustee shall
determine. The Funding 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.


 


(b)                                 EQR may, at its discretion, provide the
Funding 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 EQR (which may


 


14

















 


include
the condition that any such Eligible Employee has surrendered other similar
opportunities to purchase Shares). If the Employer provides such opportunity,
it will either sell such common Shares directly to the Funding Trustee or make cash
contributions as necessary to permit the Funding Trustee to buy such 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, the Securities Exchange Act of 1934 or any other applicable law.


 


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


 


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


 


(ii)                                  Securities traded on the NASDAQ national
market or a national securities exchange; provided, however, that this
provision shall only apply to securities acquired prior to January 1,
2003.


 


(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 such Account. Other Plan charges
and administrative expenses will be paid by the Employer.


 


15

















 


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 his or
her Account, adjusted for income, gain and loss attributable thereto.


 


(b)                                 Subject to earlier vesting as provided in
Sections 6.2, 6.3 and 6.4, a Participant shall become vested in the portion of
his or her 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 that such Restricted Share would have
become a Share that was not a Restricted Share.


 


A Participant shall at all times have a fully vested
and nonforfeitable right to all Share Deferrals credited to his or her Account
and attributable to Unrestricted Shares, Share Options or Share Appreciation
Rights.


 


(c)                                  Subject to earlier vesting as provided in
Sections 6.2, 6.3 and 6.4, a Participant shall become vested in the portion of
his or her Account attributable to Matching Deferrals credited to his or her
Account, adjusted for income, gain and loss attributable thereto, based on his
or her years of Credited Service in accordance with the following schedule:


 


16

















 




	
  Years of Credited Service

  	
   

  	
  Vested Percentage

  	
   

  
	
  less than 2

  	
   

  	
  0 

  	
  %

  
	
  2

  	
   

  	
  25 

  	
  %

  
	
  3

  	
   

  	
  50 

  	
  %

  
	
  4

  	
   

  	
  75 

  	
  %

  
	
  5 or more

  	
   

  	
  100

  	
  %

  






 


6.2                               Change of Control


 


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


 


6.3                               Death or Disability


 


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


 


17

















 


6.5                               Normal Retirement Age


 


A Participant shall become fully vested in his or
her Account immediately prior to a termination of the Participant’s employment
on or after the Participant attains his or her Normal Retirement Age.


 


ARTICLE 7


 


PAYMENTS


 


7.1                               Election as to Time and Form of
Payment


 


(a)                                  Subject to the limitations of this Article 7,
a Participant may specify a distribution date following the termination of
a Participant’s employment and service as a member of EQR’s Board of Trustees
applicable to his or her Elective Deferrals, vested share Deferrals and vested
Matching Deferrals in accordance with the following:


 


(i)                                     A Participant may specify (on the
Enrollment Form) the date or age at which all Elective Deferrals, vested Share
Deferrals and vested Matching Deferrals described in the last sentence of this
subparagraph (i), adjusted for earnings, gains and losses attributable thereto,
will be paid or commence to be paid to the Participant. Such specified date
must result in deferral over a period of at least one complete Plan Year and
shall apply to all Elective Deferrals, vested Share Deferrals and vested
Matching Deferrals for (A) the Plan Year for which the Enrollment Form is
filed; (B) any prior Plan Year, in the case of a Matching Deferral for
which no Enrollment Form was filed; and (C) any subsequent 


 


18

















 


Plan Year the last day of which is at least one full Plan Year before
the Participant’s elected distribution date.


 


(ii)                                  On the Enrollment Form filed for the
first Plan Year with respect to which a distribution date election under
subparagraph (i) would not be applicable (and for the first Plan Year with
respect to which an election under this subparagraph would not be applicable
pursuant to the last sentence of this subparagraph), a Participant may specify
the date on which distribution of the Participant’s Elective Deferrals, vested
Share Deferrals and vested Matching Deferrals described in the last sentence of
this subparagraph (ii), as adjusted for earnings, gains and losses, will be
paid or commenced to be paid to the Participant. Such specified date must
result in deferral over a period of at least one complete Plan Year and shall
apply to all Elective Deferrals, vested Share Deferrals and vested Matching
Deferrals (as adjusted) for the Plan Year for which the Enrollment form is
filed, and for any subsequent Plan Year the last day of which is at least one
full Plan Year before the Participant’s specified distribution date.


 


(b)                                 If approved by the Plan Administrator, a
Participant may change a date elected for distribution pursuant to
paragraph (a); provided that (i) the change is filed with the Plan Administrator
no later than the December 31 that is at least one Plan Year before the
Plan 


 


19

















 


Year
in which the previously elected date occurs; and (ii) the new date for
distribution occurs no earlier than the second Plan Year after the Plan Year in
which the previous change occurs.


 


(c)                                  The Participant’s election under this Section 7.1
may provide for payments to 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 (10) 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; provided, however, that all distributions must be completed within
ten (10) years of the Participant’s termination of employment and service
as a member of EQR’s Board of Trustees.


 


A
Participant who has made no election under this paragraph (c) or a
participant who has made such an election and wishes to change the election, may make
an election under this paragraph; provided that no election that is made other
than on the Enrollment Form to which an Elective Deferral, a Share
Deferral or a Matching Deferral is subject shall be effective until at least
one full Plan Year following the date the election is filed with the Plan
Administrator. Any such change shall also apply to all previous Enrollment
Forms and Change Forms filed by the Participant to the extent that the change
satisfies the preceding sentence in connection with such Forms.


 


20

















 


(d)                                 Except as provided in Sections 7.2, 7.3, 7.4,
7.5 and 7.6, payments from a Participant’s Account shall be made in accordance
with the Participant’s elections under this Section 7.1. If no election is
made by a Participant, or an election is invalid, distribution shall be made in
a single lump sum upon the termination of the Participant’s employment.


 


(e)                                  Payments from a Participant’s Account shall
be in cash or in kind (comprising assets of the Funding Trust), as determined
by the Funding Trustee. The Funding 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 EQR’s Board of Trustees, or termination of a Participant’s employment
with all Employers and Extended Companies, 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 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. An Employer shall have the right to offset
against any payments made to a Participant under this Section 7.2 an
amount as is necessary to reimburse the Employer for liabilities or obligations
of the Participant to the Employer, including for amounts misappropriated by
the Participant.


 


7.3                               Death


 


(a)                                  If a Participant dies prior to the complete
distribution of his or her 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, 


 


21

















 


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.


 


(b)                                 A Participant may designate a
beneficiary by so noticing 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 such 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 such additional
information as the Plan Administrator may require. A Participant receiving
a withdrawal under this Section 7.4 shall be suspended from making
Elective Deferrals under the Plan for the balance of the Plan Year of the
withdrawal and for the next following Plan Year.


 


22

















 


7.5                               Withdrawal Due to
Educational Expense


 


(a)                                  All or part of the balance of an
Educational Account established under Section 5.2 shall be distributed on
a quarterly basis at the Participant’s request as the expenses described in Section 5.2
are incurred by or for the child with respect to whom the Educational Account
was established. The Participant’s request shall be in writing, delivered to
the Plan Administrator, on a form prescribed for that purpose by the Plan
Administrator. The Plan Administrator may require such documentation as it
deems necessary to substantiate such expenses.


 


(b)                                 Notwithstanding the foregoing, 90% of the
balance of an Educational Account shall be transferred back to the Account of
the Participant and the balance of the Educational Account shall be forfeited
as of the earlier of:  (i) the date
as of which the child ceases full-time pursuit of post-secondary undergraduate
or graduate-level education (as applicable) for a period of more than 12
consecutive months; or (ii) with respect to (A) an Educational
Account established to finance the undergraduate education of a Participant’s
child, the child’s 23rd birthday, or (B) an Educational Account
established to fund the graduate education of a Participant’s child, the child’s
28th birthday.


 


(c)                                  Notwithstanding the foregoing, 100% of the
balance of an Educational Account shall be transferred back to the Participant’s
Account if the child with respect to whom the Educational Account is
established dies before reaching:  (i) age
23 with respect to an Educational Account established to finance the child’s
undergraduate education, or (ii) age 28 with respect to an Educational Account
established to finance the child’s post-graduate education.


 


23

















 


7.6                               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 under this Section 7.6 shall apply for the payment
in writing on a form prescribed by the Plan Administrator for that
purpose, and shall provide such additional information as the Plan
Administrator may require. The Plan Administrator will pay 90% of the
withdrawn amount to the Participant and the remaining 10% will be forfeited. A
Participant receiving a withdrawal under this Section 7.6 shall be
suspended from making Elective Deferrals and Share Deferrals under the Plan
until the next Entry Date that is at least twelve (12) months following his or
her receipt of such withdrawal. Notwithstanding the foregoing, and only in
connection with a one-time request during employment, no forfeiture amount
shall be applied with respect to a Participant distribution pursuant to this Section 7.6,
and no suspension of participation shall be required, if (a) the
distribution commences on or after the Participant attains age fifty (50) and (b) the
distribution election is made at least one complete Plan Year prior to the
distribution date.


 


7.7                               Forfeiture of Non-Vested
Amounts


 


(a)                                  To the extent that any amounts credited to a
Participant’s Account are not vested at the time such amounts are otherwise
payable under Sections 7.1 and 7.2, they shall be forfeited. Such forfeited
amounts, as well as forfeitures pursuant to Sections 7.5 and 7.6, shall be used
to satisfy the Employer’s obligation to make contributions to the Funding Trust
under the Plan.


 


(b)                                 If (i) the Plan pays to any terminated
Participant who is not 100% vested in his or her Account, the vested portion of
his or her Account prior to the time such Participant 


 


24

















 


has
incurred five (5) consecutive Breaks in Service for purposes of the
Qualified Plan and (ii) such Participant resumes employment as an Eligible
Employee after receipt of such distribution and before incurring five (5) consecutive
Breaks in Service, the provisions of this Section 7.7(b) shall apply.
Upon such reemployment, the forfeited portion of the Participant’s Account
shall be restored to his or her credit and an additional Employer contribution
in that amount shall be made for that purpose. The restored portion of the
Eligible Employee’s Account shall remain subject to the terms of the Plan and
shall be subject to the vesting provisions of Article 6, but shall include
the Credited Service prior to and following the Eligible Employee’s Breaks in
Service.


 


7.8                               Taxes


 


Income taxes and other taxes payable with respect to
an Account shall be deducted from such 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


 


PLAN ADMINISTRATOR


 


8.1                               Plan Administration and
Interpretation


 


The Plan Administrator shall oversee the
administration of the Plan. Notwithstanding any other provision of the Plan to
the contrary, 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
under the Plan. The Plan Administrator shall have complete discretion to
interpret the Plan and to decide all matters under the Plan. Such
interpretation and decision shall be final, conclusive and binding on all
Participants and 


 


25

















 


any
person claiming under or through any Participant, in the absence of clear and
convincing evidence that the Plan Administrator acted arbitrarily and
capriciously. Any individual(s) serving as Plan Administrator who is 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 Funding Trustee. The Plan
Administrator shall have the responsibility for complying with any reporting
and disclosure requirements of ERISA.


 


8.2                               Powers, Duties, Procedures,
Etc.


 


The Plan Administrator shall have such powers and
duties, may adopt such rules and tables, may act in accordance
with such procedures, may appoint such officers or agents, may delegate
such powers and duties, may receive such reimbursements and compensation, may determine
fees to be paid by Participants in connection with Plan administration, and
shall follow such claims and appeal procedures
with respect to the Plan as the Plan Administrator may establish.


 


8.3                               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 such other
pertinent facts as the Plan Administrator may require.


 


8.4                               Indemnification of Plan
Administrator


 


EQR agrees 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 such individual who formerly served as Plan
Administrator) against all liabilities, damages, costs and expenses 


 


26

















 


(including
reasonable attorneys’ fees and amounts paid in settlement of any claims
approved by EQR in writing in advance) occasioned by any act or omission to act
in connection with the Plan, if such act or omission is in good faith.


 


ARTICLE 9


 


CLAIMS PROCEDURES


 


A Participant, Beneficiary or an authorized representative (a “claimant”)
shall make all claims for benefits under the Plan in writing addressed to the Administrator
at the address of the Company. Each claim shall be reviewed by the
Administrator within a reasonable time after it is submitted, but in no event
longer than ninety (90) days after it is received by the Administrator. If a
claim is wholly or partially denied, the claimant shall be sent written notice
of such fact. If a decision on a claim cannot be rendered by the Administrator
within the ninety (90) day period, the Administrator may extend the period
in which to render the decision up to one hundred eighty (180) days after
receipt of the written claim. The denial notice, which shall be written in a
manner calculated to be understood by the claimant, shall contain (a) the
specific reason(s) for the adverse determination, (b) reference to the
specific Plan provisions on which the adverse determination is based, (c) a
description of any additional material information necessary for the claim to
be granted and an explanation of why such information is necessary, and (d) a
description of the Plan’s claim review procedures, the time limits under the
procedures and a statement regarding the claimant’s right to bring a civil
action under Section 502(a) of the Employee Retirement Income
Security Act of 1974 (“ERISA”) following an adverse benefit determination on
appeal.


 


Within sixty (60) days after receipt by the claimant
of written notice of the denial, the claimant or his duly authorized
representative may appeal such denial by filing a written 


 


27

















 


application
for review with the Administrator at the address of the Company. Each such
application shall state the grounds upon which the claimant seeks to have the
claim reviewed. The claimant or his representative may request access to
all pertinent documents relative to the claim for the purpose of preparing the
application. The Administrator will then review the decision and notify the
claimant in writing of the result within sixty (60) days of receipt of the
application for review. The sixty (60) day period may be extended if
specific circumstances require an extension of time for processing, in which
case the decision shall be rendered as soon as possible, but no later than one
hundred twenty (120) days after receipt of the application for review. The
appeal denial notice, which shall be written in a manner calculated to be
understood by the claimant, shall contain (a) the specific reason or
reasons for the adverse determination, (b) reference to the specific Plan
provisions on which the adverse determination is based, (c) a statement
that the claimant is entitled to receive, upon written request and free of
charge, access to and copies of all documents, records and other information
relevant to the benefit claim, and (d) a statement regarding the claimant’s
right to bring a civil action under Section 502(a) of ERISA following
an adverse benefit determination on appeal.


 


ARTICLE 10


 


AMENDMENT AND TERMINATION


 


10.1                        Amendment


 


EQR shall have the right to amend the Plan from time
to time, subject to Section 10.3, by an instrument in writing which has
been executed on its behalf by a duly authorized officer.


 


10.2                        Termination of Plan


 


The Plan is strictly a voluntary undertaking on the part of
the Employers and shall not be deemed to constitute a contract between an
Employer and any Eligible Employee (or any 


 


28

















 


other
employee) or any Eligible Trustee, a 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. EQR reserves the right to
terminate the Plan at any time, subject to Section 10.3, by an instrument
in writing which has been executed on its behalf by a duly authorized officer.
Upon termination, EQR may (a) elect to continue to maintain the
Funding Trust to pay benefits hereunder as they become due as if the Plan had
not terminated or (b) direct the Funding Trustee to pay promptly to
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
an Employer at the time the Funding Trustee is directed to pay such 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 Funding Trust attributable to Participants who
terminated employment with the Employers prior to termination of the Plan and
who were not fully vested in their Accounts under Article 6 at that time
shall be returned to the Employers.


 


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 his or her Account prior to the date of such amendment or
termination.


 


ARTICLE 11


 


MISCELLANEOUS


 


11.1                        No Funding


 


The Plan constitutes a mere promise by the Employers
to make payments in accordance with the term of the plan and participants and
beneficiaries shall have the status of general 


 


29

















 


unsecured
creditors of the Employers. Nothing in the Plan will be construed to give any
employee or any other person rights to any specific assets of an Employer or of
any other person. In all events, it is the intent of the Employers that the
Plan be treated as unfunded for tax purposes and for purposes of Title I of
ERISA. Subject to the foregoing, EQR shall have the authority to establish and
maintain a grantor trust for the purpose of providing benefits under the terms
of the Plan.


 


11.2                        Non-assignability


 


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
such Participant or beneficiary, nor shall any Participant or beneficiary have
any right to alienate, anticipate, commute, pledge, encumber or assign any of
the benefits or payments or proceeds which he or she may expect to
receive, contingently or otherwise under the Plan.


 


11.3                        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 EQR, 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.


 


11.4                        Participants Bound


 


Any action with respect to the Plan taken by the
Plan Administrator or the Funding Trustee or any action authorized by or taken
at the direction of the Plan Administrator, an 


 


30

















 


Employer
or the Funding Trustee shall be conclusive upon all Participants and
beneficiaries entitled to benefits under the Plan.


 


11.5                        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 the Employers, the Plan Administrator
and the Funding Trustee under the Plan, and the Plan Administrator may require
such Participant or beneficiary, as a condition precedent to such payment, to
execute a receipt and release to such 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
such person to be made to another person for his or her benefit without
responsibility on the part of the Plan Administrator, the Employers or the
Funding Trustee to follow the application of such funds.


 


11.6                        Governing Law


 


The Plan shall be construed, administered, and
governed in all respects under and by the laws of the State of Illinois to the
extent not superseded by federal law. 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.


 


11.7                        Headings and Subheadings


 


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


 


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EXECUTED, on behalf of EQR, this 27th day of
December, 2002.


 


 


	
   

  	
  EQUITY RESIDENTIAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Catherine Carraway

  	
   

  



 


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