exv10w2



 






EXHIBIT 10.2




CHANGE IN CONTROL AGREEMENT




     THIS CHANGE IN CONTROL AGREEMENT (“Agreement”) is entered into effective as of October 20,
2003 by and between EQUITY OFFICE MANAGEMENT, L.LC., a Delaware limited liability company
(“Employer”), EQUITY OFFICE PROPERTIES TRUST, a Maryland real estate investment trust (the “Trust”)
and PEYTON H. OWEN (the “Executive”).



WITNESSETH




WHEREAS, the Trust is the indirect ultimate controlling parent of Employer; and




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



     WHEREAS, the Board has determined that it is essential and in the best interest of the Trust
and/or its affiliates, (including Employer, as the context may require, collectively, the
“Company”) and the Trust’s shareholders to retain the services of the Executive in the event of a
threat or occurrence of a Change in Control and to ensure his continued dedication and efforts in
such event without undue concern for his personal financial and employment security; and



     WHEREAS, in order to induce the Executive to remain in the employ of the Company particularly
in the event of a threat or the occurrence of a Change in Control, the Employer desires to enter
into this Agreement with the Executive to provide the Executive with certain benefits in the event
his employment is terminated as a result of, or in connection with, a Change in Control and to
provide the Executive with certain other benefits whether or not the Executive’s employment is
terminated.



AGREEMENT




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



     1.     Term of Agreement. This Agreement shall commence as of the date hereof and shall
continue in effect until the date the Executive’s employment by the Company is terminated;
provided, however, that if the Executive’s employment is terminated following, or in anticipation
of, a Change in Control, the term shall continue in effect until all payments and benefits have
been made or provided to the Executive hereunder.



     2.     Definitions



          2.1     Accrued Compensation. For purposes of this Agreement, “Accrued Compensation”
shall mean an amount which shall include all amounts earned


 









 







or accrued through the “Termination
Date” (as hereinafter defined) but not paid as of the Termination Date including (i) base salary,
(ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date, (iii) paid time off (to the extent
provided by Company policy or applicable law), and (iv) 100% of any target bonus with respect to
the Company’s fiscal year ended prior to the Termination Date to the extent a bonus for such year
has not been awarded and paid prior to the Termination Date.




          2.2     Base Amount. For purposes of this Agreement, “Base Amount” shall mean the greater
of (a) the Executive’s annual base salary, at the rate in effect immediately prior to the Change in
Control and (b) the Executive’s annual base salary, at the rate in effect on the Termination Date.




          2.3     Bonus Amount. For purposes of this Agreement, “Bonus Amount” shall mean the
annual average of the cash and fair market value (when paid or awarded and calculated without
regard to any vesting requirement) of stock or other property paid to the Executive (including
amounts that would have been paid if they had not been deferred) under the Company’s annual
incentive bonus plan for the three years immediately preceding the year in which the Executive’s
employment terminates (disregarding for these purposes any year during such 3 year period that
Executive did not work a full year), or for such shorter period that the Executive has been
employed by the Company. If the Executive’s employment is terminated in the Executive’s first year
of employment, “Bonus Amount” shall mean 100% of the target bonus that the Executive would have
been eligible to receive for such year.




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


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failure to perform by the
Executive after a Notice of Termination is given by the Executive shall constitute Cause for
purposes of this Agreement.




          2.5     Change in Control. For purposes of this Agreement, a “Change in Control” shall
mean any of the following events:




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




               (b)     Approval by shareholders of the Trust:





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




     (A)      the shareholders of the Trust, 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 of the Voting Securities of the
Surviving Corporation.



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(A merger, consolidation or reorganization involving the Trust 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 the Trust; or




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


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




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




          2.6     Company. For purposes of this Agreement, the “Company” shall include the
Company’s “Successors and Assigns” (as hereinafter defined).




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




          2.8     Good Reason.




               (a)     For purposes of this Agreement, “Good Reason” shall mean the occurrence after a Change in
Control of any of the events or conditions described in subsections (i) through (viii) hereof:





     (i)     a change in the Executive’s status, position or responsibilities (including
reporting responsibilities) which, in the Executive’s reasonable judgment,
represents an adverse change (other than an immaterial or de minimus adverse change)
from his status, position or responsibilities as in effect at any time within 180
days preceding the date of a Change in Control or at any time thereafter; the
Executive no longer reports to the chief executive officer of the Company (if the
Executive reported to such officer prior to the Change in Control); the assignment
to the Executive of any duties or responsibilities which, in the Executive’s
reasonable judgment, are inconsistent with his status, title, position or
responsibilities as in effect at any time within 180 days preceding the date of a
Change in Control or at any time thereafter; or any removal of the Executive from or
failure to reappoint or reelect him to any of such offices or positions held prior
to the Change in Control, except in connection with the termination of his
employment for Disability, Cause, as a result of his death or by the Executive other
than for Good Reason;




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




     (iii)     the Company’s requiring the Executive to be based at any place outside a
25-mile radius from the Executive’s principal location of business prior to the
Change in Control, except for reasonably required travel on the Company’s business
which is not materially greater than such travel requirements prior to the Change in
Control;




     (iv)     the failure by the Company to provide the Executive with compensation and
benefits, in the aggregate, at least equal (in terms of benefit levels and/or reward
opportunities which opportunities will be evaluated in light of the performance
requirements therefor) to those provided for under each other employee compensation
and benefit plan, program and practice in which the Executive was participating at
any time within 180 days preceding the date of a Change in Control or at any time
thereafter;



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




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




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




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



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




               (c)     The Executive’s right to terminate his employment pursuant to this Section 2.8 shall not
be affected by his incapacity due to a Disability.




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




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




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




          2.12.     Termination Date. For purposes of this Agreement, “Termination Date” shall mean
(a) in the case of the Executive’s death, his date of death, (b) in the case of


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




          3.     Termination of Employment. If the Executive’s employment with the Company shall be
terminated within twenty-four (24) months following a Change in Control, the Executive shall be
entitled to the following compensation and benefits:




               (a)     If the Executive’s employment with the Company shall be terminated (i) by the Company for
Cause or Disability, (ii) by reason of the Executive’s death or (iii) by the Executive other than
for Good Reason, the Employer shall pay to the Executive the Accrued Compensation; provided,
however, any incentive compensation shall not be paid in the case of a termination by the Company
for Cause; and provided, further that, if an employment agreement is in
existence between the Company and the Executive on the Termination Date, the Employer and/or its
affiliates, as the case may be, shall also pay to the Executive any amounts owed to the Executive
pursuant to such employment agreement, but only to the extent such amounts are not duplicative of
amounts otherwise payable hereunder.




               (b)     If the Executive’s employment with the Company shall be terminated for any reason other
than as specified in Section 3(a), the Executive shall be entitled to the following:





     (i)     the Employer shall pay the Executive all Accrued Compensation and a Pro
Rata Bonus;




     (ii)     the Employer shall pay the Executive as severance pay and in lieu of any
further compensation for periods subsequent to the Termination Date, in a single
payment an amount in cash equal to two and a half (21/2) times the sum of (A) the Base
Amount and (B) the Bonus Amount; provided, however, if an employment
agreement is in existence between the Company and the Executive on the Termination
Date, any amount due the Executive under this Section 3(b)(ii) shall be reduced by
the amount of Base Amount and Bonus Amount paid as severance pay to Executive
pursuant to such employment agreement in lieu of compensation for periods subsequent
to the Termination Date.




     (iii)     for thirty (30) months following the Termination Date, (the “Continuation
Period”), the Employer shall at its expense continue on behalf of the Executive and
his dependents and beneficiaries the medical,
dental, life, disability and hospitalization benefits provided (A) to the Executive
at any time during the 90-day period prior to the Change in



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Control or at any time
thereafter (and if different benefits were paid during such period, such of those
benefits as are elected by the Executive) or (B) to other similarly situated
executives who continue in the employ of the Company during the Continuation Period.
The coverage and benefits (including deductibles and costs) provided in this
Section 3(b)(iii) during the Continuation Period shall be no less favorable to the
Executive and his dependents and beneficiaries than the most favorable of such
coverages and benefits during any of the periods referred to in clauses (A) and (B)
above. The Employer’s obligation hereunder with respect to the foregoing benefits
shall be compromised to the extent that the Executive obtains any such benefits
pursuant to a subsequent employer’s benefit plans, in which case the Employer may
reduce the coverage of any benefits it is required to provide the Executive
hereunder as long as the aggregate coverages and benefits of the combined benefits
plans is no less favorable to the Executive than the coverages and benefits required
to be provided hereunder. This subsection (iii) shall not be interpreted so as to
limit any benefits to which the Executive, his dependents or beneficiaries may be
otherwise entitled under any of the Company’s employee benefit plans, programs or
practices following the Executive’s termination of employment, including without
limitation, retiree medical and life insurance benefits;




     (iv)     all theretofore unvested share options, restricted options, restricted
share and other awards issued to the Executive pursuant to the Company’s Share
Option and Share Award Plan, and all unvested benefits under any split dollar life
insurance policies insuring the Executive’s life, shall immediately become 100%
vested; and




     (v)     a payment from the Employer equal to the unvested amount contained in the
Executive’s accounts in the Company’s 401(k) plan (or any other qualified plan of
the Company or an affiliate) which he or she will forfeit as a result of his or her
termination.



               (c)     The amounts provided for in Sections 3(a) and 3(b)(i) and (ii) shall be paid in a single
lump sum cash payment in immediately available funds within five (5) days after the Executive’s
Termination Date (or earlier, if required by applicable law).




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




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


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




          4.     Notice of Termination. Following a Change in Control, any purported termination of
the Executive’s employment by the Company shall be communicated by Notice of Termination to the
Executive. For purposes of this Agreement, no such purported termination shall be effective
without such Notice of Termination.




          5.     Excise Tax Gross-Up.




               (a)     Notwithstanding anything contained in this Agreement to the contrary, in the event it is
determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any
payment, distribution, transfer, benefit or other event with respect to the Company or its
predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor,
successor or affiliate of any of them, and including any benefit plan of any of them), to or for
the benefit of Executive or Executive’s dependents, heirs or beneficiaries (whether such payment,
distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required under this Section 5)
(each a “Payment” and collectively the “Payments”) is or was subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any
comparable provision of state or local income tax law (collectively, “Section 4999”), or any
interest, penalty or addition to tax is or was incurred by Executive with respect to such excise
tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter
collectively referred to as the “Excise Tax”), then, within 10 days after such determination or
final determination, as the case may be, the Employer shall pay to Executive an additional cash
payment (hereinafter referred to as the “Gross-Up Payment”) in an amount such that after payment by
Executive of all taxes, interest, penalties and additions to tax imposed with respect to the
Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the
Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon such Payment or Payments. This provision is intended to put Executive in the same
position as Executive would have been had no Excise Tax been imposed upon or incurred as a result
of any Payment.




               (b)     Except as provided in subsection (c) below, the determination that a Payment is subject to
an Excise Tax shall be made in writing by a nationally recognized certified public accounting firm
selected by Executive (“Executive’s Accountant”). Such determination shall include the amount of
the Gross-Up Payment and detailed computations thereof, including any assumptions used in such
computations (the written determination of the Executive’s Accountant, hereinafter, the
“Executive’s Determination”). The Executive’s Determination shall be reviewed on behalf of the
Company by a nationally recognized certified public accounting firm selected by the Company (the
“Company’s Accountant”). The Company shall notify Executive within 10
business days after receipt of the Executive’s Determination of any disagreement or dispute
therewith, and failure to so notify within that period shall be considered an


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agreement by the
Company with the Executive’s Determination, obligating the Employer to make payment as provided in
subsection (a) above within 10 days from the expiration of such 10 business-day period. In the
event of an objection by the Company to the Executive’s Determination, any amount not in dispute
shall be paid within 10 days following the 10 business-day period referred to herein, and with
respect to the amount in dispute the Executive’s Accountant and the Company’s Accountant shall
jointly select a third nationally recognized certified public accounting firm to resolve the
dispute and the decision of such third firm shall be final, binding and conclusive upon the
Executive and the Company. In such a case, the third accounting firm’s findings shall be deemed
the binding determination with respect to the amount in dispute, obligating the Employer to make
any payment as a result thereof within 10 days following the receipt of such third accounting
firm’s determination. All fees and expenses of each of the accounting firms referred to in this
Section 5 shall be borne solely by the Employer.





(c)     (i)     Executive shall notify the Company in writing of any claim by the Internal
Revenue Service (or any successor thereof) or any state or local taxing authority
(individually or collectively, the “Taxing Authority”) that, if successful, would
require the payment by the Employer of a Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than 30 days after Executive receives written
notice of such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid; provided, however, that failure by
Executive to give such notice within such 30-day period shall not result in a waiver or
forfeiture of any of Executive’s rights under this Section 5 except to the extent of
actual damages suffered by the Company as a result of such failure. Executive shall
not pay such claim prior to the expiration of the 15-day period following the date on
which Executive gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes, interest, penalties or additions to tax with respect to
such claim is due). If the Company notifies Executive in writing prior to the
expiration of such 15-day period that it desires to contest such claim (and
demonstrates to the reasonable satisfaction of Executive its ability to make the
payments to Executive which may ultimately be required under this section before
assuming responsibility for the claim), Executive shall:




     (A) give the Company any information reasonably requested by the Company
relating to such claim;




     (B) take such action in connection with contesting such claim as the Company
shall reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an attorney
selected by the Company that is reasonably acceptable to Executive;



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     (C) cooperate with the Company in good faith in order effectively to contest
such claim; and




     (D) permit the Company to participate in any proceedings relating to such
claim; provided, however, that the Employer (including additional interest,
penalties and additions to tax) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for all taxes
(including, without limitation, income and excise taxes), interest, penalties and
additions to tax imposed in relation to such claim and in relation to the payment of
such costs and expenses or indemnification. Without limitation on the foregoing
provisions of this Section 5, and to the extent its actions do not unreasonably
interfere with or prejudice Executive’s disputes with the Taxing Authority as to
other issues, the Company shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax, interest or penalties claimed and sue for a refund or
contest the claim in any permissible manner, and Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs Executive to pay such claim and sue
for a refund, the Employer shall advance an amount equal to such payment to
Executive, on an interest-free basis, and shall indemnify and hold Executive
harmless, on an after-tax basis, from all taxes (including, without limitation,
income and excise taxes), interest, penalties and additions to tax imposed with
respect to such advance or with respect to any imputed income with respect to such
advance; and, further, provided, that any extension of the statute of limitations
relating to payment of taxes, interest, penalties or additions to tax for the
taxable year of Executive with respect to which such contested amount is claimed to
be due is limited solely to such contested amount; and, provided, further, that any
settlement of any claim shall be reasonably acceptable to Executive and the
Company’s control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder, and Executive shall be entitled to
settle or contest, as the case may be, any other issue.




     (ii) If, after receipt by Executive of an amount advanced by the Employer pursuant
to Section 5(c)(i), Executive receives any refund with respect to such claim,
Executive shall (subject to the Company’s complying with the requirements of Section
5) promptly pay to the Employer an amount equal to such refund (together with any
interest paid or credited thereon after taxes applicable thereto), net of any taxes
(including without limitation any income or excise taxes), interest,



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penalties or
additions to tax and any other costs incurred by Executive in connection with such
advance, after giving effect to such repayment. If, after the receipt by Executive
of an amount advanced by the Employer pursuant to Section 5(c)(i), it is finally
determined that Executive is not entitled to any refund with respect to such claim,
then such advance shall be forgiven and shall not be required to be repaid and the
amount of such advance shall be treated as a Gross-Up Payment and shall offset, to
the extent thereof, the amount of any Gross-Up Payment otherwise required to be
paid.




     (iii) For purposes of this Section 5, whether the Excise Tax is applicable to a
Payment shall be deemed to be “finally determined” upon the earliest of: (A) the
expiration of the 15-day period referred to in paragraph (c)(i) above if the Company
has not notified Executive that it intends to contest the underlying claim, (B) the
expiration of any period following which no right of appeal exists, (C) the date
upon which a closing agreement or similar agreement with respect to the claim is
executed by Executive and the Taxing Authority (which agreement may be executed only
in compliance with this Section 5), (D) the receipt by Executive of notice from the
Company that it no longer seeks to pursue a contest (which notice shall be deemed
received if the Company does not, within 15 days following receipt of a written
inquiry from Executive, affirmatively indicate in writing to Executive that the
Company intends to continue to pursue such contest).



               (d)      As a result of uncertainty in the application of Section 4999 that may exist at
the time of any determination that a Gross-Up Payment is due, it may be possible that
in making the calculations required to be made hereunder, the parties or their
accountants shall determine that a Gross-Up Payment need not be made (or shall make no
determination with respect to a Gross-Up Payment) that properly should be made
(“Underpayment”), or that a Gross-Up Payment not properly needed to be made should be
made (“Overpayment”). The determination of any Underpayment shall be made using the
procedures set forth in paragraph (b) above and shall be paid to Executive as an
additional Gross-Up Payment. The Company shall be entitled to use procedures similar
to those available to Executive in paragraph (b) to determine the amount of any
Overpayment (provided that the Company shall bear all costs of the accountants as
provided in paragraph (b)). In the event of a determination that an Overpayment was
made, any such Overpayment shall be treated for all purposes as a loan to Executive
with interest at the applicable Federal rate provided for in Section 1274(d) of the
Code; provided, however, that the amount to be repaid by Executive to the Employer
shall be subject to reduction to the extent necessary to put Executive in the same
after-tax position as if such Overpayment were never made.




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



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



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



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



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



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Company at any time, subject, however to the rights of the Executive provided herein in the event
of any such termination.



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



     12.     Full Satisfaction; Waiver and Release. As a condition to receiving the payments
and benefits hereunder, the Executive shall execute a document in customary form, releasing and
waiving any and all claims, causes of actions and the like against the Company and its successors,
shareholders, officers, trustees, agents and employees, regarding all matters relating to the
Executive’s service as an employee of the Company or any affiliates and the termination of such
relationship. Such claims include, without limitation, any claims arising under Age Discrimination
in Employment Act of 1967, as amended (the “ADEA”); Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991, as amended; the Equal Pay Act of 1962; the American
Disabilities Act of 1990; the Family Medical Leave Act, as amended; the Employee Retirement Income
Security Act of 1976, as amended; or any other federal, state or local statute or ordinance, but
exclude any claims that arise out of an asserted breach of the terms of this Agreement or current
or future claims related to the matters described in Paragraph 9.



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



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



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



     16.     Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, if any, understandings



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and arrangements, oral or written, between the Company and Executive with respect to the subject
matter hereof, including any prior “Change in Control” agreement.



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


	 	 	 	 	 
	 	EQUITY OFFICE PROPERTIES TRUST

 	 
	 	By:  	/s/  Stanley M. Stevens
 	 
	 	 	Name:  	Stanley M. Stevens 	 
	 	 	Title:  	Executive Vice President, Chief Legal

Counsel and Secretary 	 
	 
	 	EQUITY OFFICE MANAGEMENT, L.L.C.

 	 
	 	By:  	/s/  Stanley M. Stevens
 	 
	 	 	Name:  	Stanley M. Stevens 	 
	 	 	Title:  	Executive Vice President 	 
	 
	 	 	 
	 	                                              /s/  Peyton H. Owen
 	 
	 	Peyton H. Owen 	 
	 	 	 
	 





     For and in consideration of the benefits hereunder to Employer, the wholly-owned subsidiary of
the undersigned, the undersigned does hereby unconditionally guarantee the obligations of Employer
hereunder.


	 	 	 	 	 
	 	EOP Operating Limited Partnership

 	 
	 	By:  	Equity Office Properties Trust, its general
partner
 	 
	 	 	 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	                                      /s/  Stanley M. Stevens
 	 
	 	 	Name:  	Stanley M. Stevens 	 
	 	 	Title:  	Executive Vice President, Chief Legal
Counsel and
Secretary 	 
	 





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