exv10w2



 





Exhibit 10.2




EQUITY OFFICE PROPERTIES TRUST

SHARE APPRECIATION RIGHTS AGREEMENT




     This SHARE APPRECIATION RIGHTS AGREEMENT (the “Agreement”), is entered
into this 20th day of September, 2004, between Equity Office Properties Trust,
a Maryland real estate investment trust (the “Company”), and Jan H. W. R. van
der Vlist (the “Grantee”).



W I T N E S S E T H:




     WHEREAS, the Board of Trustees of the Company has agreed to award Grantee,
in partial consideration for his service as a Trustee, the share appreciation
rights (“SARs”) relating to the common shares of beneficial interest of the
Company, par value of $.01 per share (“Shares”), and



     WHEREAS, such award shall be made pursuant to the Equity Office Properties
Trust 1997 Share Option and Share Award Plan, as amended, in lieu of option and
restricted share grants otherwise payable for such services;



     NOW, THEREFORE, in partial consideration of the foregoing described
services, and the promises and mutual covenants set forth in this Agreement,
the Company and Grantee hereby agree as follows:



     1. Grant of SARs. Subject to the terms and conditions provided in this
Agreement, the Company hereby grants to the Grantee SARs, comprised of 7,226
option share appreciation rights (“Option SARs”) and 1,392 restricted share
appreciation rights (“Restricted SARs”).



     2. Term of SARs.




	(a)	 	Except as provided below, the term of the SARs
shall be for a period of ten (10) years beginning as of June
1, 2004 (the “Deemed Grant Date”) and ending on June 15, 2014
(the “Expiration Date”).






	(i)	 	If the Grantee’s Service (as defined
in this paragraph) terminates for cause, the SARs shall
expire immediately and all rights to exercise the SARs
shall cease. Termination for cause shall be determined
by the Compensation Committee of the Company’s Board of
Trustees (the “Committee”) in its discretion. For
purposes of this Agreement, “Service” means service with
the Company as a trustee and Grantee’s Service shall
continue until he is no longer a trustee of the Company.




 









 






	(ii)	 	If the Grantee’s Service terminates,
including by way of resignation (whether or not at the
request of Stichting Pensioenfonds voor de Gezondheid,
Geestelijke en Maatschappelijke Belangen, a stichting
formed according to the laws of the Kingdom of The
Netherlands (“PGGM”)), other than:






	(A)	 	for cause;
	 
	(B)	 	because of the Grantee’s
death or permanent and total disability (within
the meaning of Section 22(e)(e) of the Internal
Revenue Code of 1986, as amended);
	 
	(C)	 	in connection with the
Trustee’s failure to be re-elected to the
Company’s Board of Trustees (other than in
connection with a failure caused by PGGM’s
decision to select a candidate other than the
Grantee for the Company’s Board of Trustees); or
	 
	(D)	 	following a “Change in
Control” of the Company (defined below),






	 	 	no additional SARs shall become exercisable, as
determined below in Paragraph 4, after the date such
Service terminates, and the SARs shall expire three (3)
months after the date of termination of the Grantee’s
Service. As of the effective date of the termination
of Service and thereafter, the Grantee shall be allowed
to exercise the SARs which are exercisable as of the
date of the termination, but only if the Grantee has
satisfied any outstanding debts or liabilities to the
Company and has returned all Company property in his
possession. All SARs which are not exercisable on the
effective date of termination of Service shall
immediately terminate on the effective date of
termination of Service.
	 
	(iii)	 	If the Grantee’s Service terminates
because of his death, the SARs shall be exercisable in
full and shall expire twelve (12) months after the date
of the Grantee’s death and shall be exercisable by the
person or persons to whom the SARs pass by will or by
the laws of descent and distribution in accordance with
Paragraph 6 below.
	 
	(iv)	 	If the Grantee’s Service terminates
because of his permanent and total disability (within
the meaning of Section 22(e)(e) of the Internal Revenue
Code of 1986, as amended), in connection with the
Grantee’s failure to be re-elected to the Company’s
Board of Trustees (other than a failure caused by PGGM’s
decision to select a candidate other than the Grantee
for the Company’s Board of




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	 	 	Trustees), or following a Change in Control of the
Company, the SARs shall be immediately exercisable in
full and shall expire on the Expiration Date.






	(b)	 	Notwithstanding the foregoing provisions, the
Committee may provide, at any time before the Expiration Date,
that the SARs shall not expire prior to the date they would
otherwise expire under this paragraph, and may provide, in
connection therewith,






	(i)	 	the date or event that will cause the
SARs to expire (or that the SARs will expire on the
Expiration Date); and/or
	 
	(ii)	 	the extent to which the SARs shall
continue to become exercisable.






	 	 	Notwithstanding the foregoing, in no event shall the SARs be
exercisable later than the Expiration Date, and all rights to
exercise the SARs shall cease as of the Expiration Date or
its earlier expiration as provided herein.






	(c)	 	For purposes of this Agreement, a “Change in
Control” shall be deemed to occur upon:






	(i)	 	the acquisition by any entity, person or group of
more than fifty percent (50%) of the outstanding Shares
from the holders thereof;
	 
	(ii)	 	a merger or consolidation of the Company 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 fifty percent (50%)
of the shares of beneficial ownership of the surviving
or resulting corporation; or
	 
	(iii)	 	a direct or indirect transfer of substantially
all of the property of the Company other than to an
entity of which the Company directly or indirectly owns
at least fifty percent (50%) of the shares of
beneficial ownership.





     3. Exercise Price. The exercise price per each Option SAR shall be
$26.95, subject to adjustment as provided below in Paragraph 5.



     4. Exercise of SARs.




	(a)	 	The Option SARs shall be exercisable in
accordance with the following schedule. The Grantee may
exercise all or part of:




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	(i)	 	one-third (1/3) of the Option SARs
(rounded to the nearest whole SAR) on or after six (6)
months from the Deemed Grant Date;
	 
	(ii)	 	an additional one-third (1/3) of the
entire Option SARs grant made hereunder (rounded to the
nearest whole SAR) on or after the first anniversary of
the Deemed Grant Date; and
	 
	(iii)	 	the remaining Option SARs on or
after the second anniversary of the Deemed Grant Date.






	 	 	Notwithstanding the foregoing, in no event, however, may the
Grantee exercise any of the SARs later than the Expiration
Date (as provided above in Paragraph 2) or during any period
during which executives or Trustees are prohibited from
trading Company securities.






	(b)	 	The Restricted SARs shall be exercisable in
accordance with the following schedule. The Grantee may
exercise all or part of:






	(i)	 	one-fourth (1/4) of the Restricted
SARs (rounded to the nearest whole SAR) on an after the
first anniversary of the Deemed Grant Date; and
	 
	(ii)	 	an additional one-fourth (1/4) of the
initial Restricted SARs grant made hereunder (rounded to
the nearest whole SAR) on or after the second and each
of the subsequent two anniversaries of the Deemed Grant
Date.






	(c)	 	The Grantee or such other person entitled to
exercise the SARs (as described below in Paragraph 6) may
exercise the SARs by providing written notice thereof prior to
the Expiration Date to the Company’s Chief Legal Counsel at
the address provided in Paragraph 11, or to such other person
or location designated by the Company’s Chief Legal Counsel.
Such written notice shall state that the SARs are being
exercised thereby, the number of Option SARs and/or Restricted
SARs being exercised, and shall be signed by the person or
persons exercising the SARs.
	 
	 	 	If the SARs are exercised by any person or entity other than
the Grantee, such written notice and payment must also be
accompanied by appropriate proof of the right of such person
or entity to exercise the SARs.
	 
	 	 	As soon as practicable following its receipt of sufficient
written notice and any other required documentation, the
individual exercising the SARs shall receive from the Company
in cash an amount equal to (i) the positive difference
between the Fair Market Value (as defined below) of a Share
on the exercise date and the exercise price, multiplied by
the number of




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	 	 	Option SARs being exercised, and (ii) the Fair Market Value
(as defined below) of a share on the exercise date,
multiplied by the number of Restricted SARs being exercised.
	 
	(d)	 	For purposes of this Agreement, “Fair Market
Value” means the closing price paid for a Share on the New
York Stock Exchange on the first trading day immediately
preceding the date for which Fair Market Value is being
determined.





     5. Adjustment to Number of Shares Subject to the SARs. In the event of
any change in the number of outstanding Shares by reason of any Share dividend,
split, recapitalization, merger, consolidation, combination, exchange of Shares
or other similar corporate change which affects the capital structure of the
Company, the aggregate number and kind of Shares to which the SARs relate shall
be proportionately adjusted by the Company’s Board of Trustees, and the terms
of this Agreement may be adjusted by the Company’s Board of Trustees in such
manner as it deems equitable.



     6. Transfer Restrictions. The SARs may not be assigned, transferred,
pledged or hypothecated in any way, shall not be assignable by operation of
law, nor subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the SARs
contrary to the provisions of this Agreement, and the levy of any execution,
attachment or similar process upon the SARs, shall be null and void and without
effect. Notwithstanding the foregoing, the SARs may be transferred: (i) by
will or the laws of descent and distribution; or (ii) by the Grantee to PGGM.



     7. Withholding Taxes. To the extent that the Company is required to
withhold taxes with respect to the payment of dividends or exercise of the SAR
by the Grantee, payment of part or all of the required withholding taxes may be
satisfied as follows:




	(i)	 	the Company may withhold from amounts
payable to the Grantee as compensation or otherwise an
amount necessary to satisfy all withholding tax
requirements; or
	 
	(ii)	 	the Grantee may remit to the Company
an amount sufficient to satisfy payment.





     8. Source Allocation of Taxable Income. For U.S. federal income tax
purposes, the Company agrees to characterize any income realized by the Grantee
in connection with or upon the exercise of the SARs pursuant to this Agreement
as partly from sources within the United States and partly from sources without
the United States in accordance with the Grantee’s reasonable estimate of the
actual location of the performance of Grantee’s Service; provided, however,
that the Company shall have no obligation to observe such allocation if the
Company determines that such allocation is not reasonably supportable based
upon the available facts. Subject to the proviso in the preceding sentence,
unless and until the Grantee has delivered to the Company an Allocation Change
Notice (as defined below), the Company, based upon Grantee’s



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statements to the Company as to the location of the performance of Grantee’s
Service, shall treat twenty-five percent (25%) of any income realized by the
Grantee upon the exercise of the SARs as income from sources within the United
States and seventy-five percent (75%) of such income as income from sources
without the United States (the “Initial Allocation”). An “Allocation Change
Notice” means a written notice provided by Grantee to the Company in accordance
with the notice provisions set forth in this Agreement with respect to any
calendar year prior to or during which the Grantee exercised any SARs under
this Agreement that advises the Company of any change in circumstances related
to the actual location of the performance of the Grantee’s Service that would
result in a different allocation of income that is from sources within the
United States than provided in the Initial Allocation. The Grantee covenants
and agrees that Grantee will provide an Allocation Change Notice to the Company
with respect to any calendar year during which such change in circumstances
occurs or is expected to occur.



     9. Service Rights of Grantee. This Agreement shall not constitute a
contract of continued Service, and the grant of the SARs to the Grantee does
not confer upon the Grantee the right to be retained in the Service of the
Company.



     10. Shareholder Rights. The Grantee or other person or entity exercising
the SARs shall have no rights as a shareholder of record of the Company with
respect to the Shares to which the SARs relate except for the right to receive
dividends, if and when declared by the Board of Trustees.



     11. Compliance. At all times during the term of the SARs, the Company
shall, from time to time, use its best efforts to comply with all laws and
regulations which, in the opinion of the Company’s Chief Legal Counsel, shall
be applicable thereto.



     12. Notices. All notices under this Agreement shall be in writing and
shall be sent by registered or certified mail, or by a nationally recognized
overnight delivery service, postage or charges prepaid. All notices to the
Company shall be sent to the following address:



	 
	Two North Riverside Plaza

	Suite 2100

	Chicago, Illinois 60606

	Attention: Chief Legal Counsel








     All notices to the Grantee shall be sent to the Grantee’s last known
address.



     Any such written notice or communication given by mail shall be deemed to
have been given two (2) business days after the date so mailed, and such
written notice or communication given by an overnight delivery service shall be
deemed to have been given one (1) business day after the date so sent.



     13. Interpretation. The interpretation and construction by the Committee
of any terms or conditions of this Agreement or other matters related to this
Agreement shall be final and conclusive.



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     14. Enforceability. This Agreement shall be binding upon the Grantee and
his estate, assignee, transferee, personal representative and beneficiaries.



     IN WITNESS WHEREOF, each of the undersigned have executed this Agreement
as of the day and year first written above.



	 	 	 	 	 	 	 
	 	 	EQUITY OFFICE PROPERTIES TRUST	 	 
	 
	 	 	 	 	 	 
	

	 	By:
	 	       /s/ Stanley M. Stevens	 	 
	

	 	 	 	
 	 	 
	

	 	 	 	       Stanley M. Stevens	 	 
	

	 	Its:
	 	       Executive Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	GRANTEE:	 	 
	 
	 	 	 	 	 	 
	

	 	 	 	       /s/ Jan H. W. R. van der Vlist	 	 
	 	 	
 
	

	 	 	 	       Jan H. W. R. van der Vlist	 	 








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