Exhibit No. 10.1
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT ("Agreement") is entered into effective as
of September 1, 2001 by and between EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation ("Employer"), EQUITY OFFICE PROPERTIES TRUST, a Maryland
real estate investment trust (the "Trust") and XXXXXXX X. XXXXXXXX (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
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act nor a failure to act, on the Executive's part shall be considered
"intentional" unless the Executive has acted or failed to act with a lack of
good faith and with a lack of reasonable belief that the Executive's action or
failure to act was in the best interest of the Company. Notwithstanding anything
contained in this Agreement to the contrary, no failure to perform by the
Executive after a Notice of Termination 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 0000 Xxx) 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 of:
(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
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owning, directly or indirectly, a majority of the Voting
Securities of the Surviving Corporation.
(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 serves as the chief executive officer of a
publicly traded company; 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.
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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 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 three (3) 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-six (36) 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,
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dental, life, disability and hospitalization benefits provided
(A) to the Executive at any time during the 90-day period prior
to the Change in 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).
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(e) The Executive's entitlement to any other compensation or benefits or
any indemnification shall be determined in accordance with the Company's
employee benefit plans 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
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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 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 xxx 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 xxx 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
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(including without limitation any income or excise taxes), interest,
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
13
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 Xxxx 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/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Chief Legal Counsel
and Secretary
EQUITY OFFICE PROPERTIES MANAGEMENT CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President
---------------------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------------
XXXXXXX X. XXXXXXXX
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/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Chief Legal Counsel
and Secretary
