{"id":38571,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-in-control-agreement-equity-office-properties-management11.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-in-control-agreement-equity-office-properties-management11","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-in-control-agreement-equity-office-properties-management11.html","title":{"rendered":"Change in Control Agreement &#8211; Equity Office Properties Management Corp., Equity Office Properties Trust and Richard D. Kincaid"},"content":{"rendered":"<pre>                           CHANGE IN CONTROL AGREEMENT\n\n     THIS CHANGE IN CONTROL AGREEMENT (\"Agreement\") is entered into effective as\nof September 1, 2001 by and between EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a\nDelaware corporation (\"Employer\"), EQUITY OFFICE PROPERTIES TRUST, a Maryland\nreal estate investment trust (the \"Trust\") and RICHARD D. KINCAID (the\n\"Executive\").\n\n                                   WITNESSETH\n\n     WHEREAS, the Trust is the indirect ultimate controlling parent of Employer;\nand\n\n     WHEREAS, the Board of Trustees of the Trust (the \"Board\") recognizes that\nthe possibility of a Change in Control (as hereinafter defined) exists or may\nexist in the future and that the threat or the occurrence of a Change in Control\ncan result in significant distractions of its key management personnel because\nof the uncertainties inherent in such a situation;\n\n     WHEREAS, the Board has determined that it is essential and in the best\ninterest of the Trust and\/or its affiliates, (including Employer, as the context\nmay require, collectively, the \"Company\") and the Trust's shareholders to retain\nthe services of the Executive in the event of a threat or occurrence of a Change\nin Control and to ensure his continued dedication and efforts in such event\nwithout undue concern for his personal financial and employment security; and\n\n     WHEREAS, in order to induce the Executive to remain in the employ of the\nCompany particularly in the event of a threat or the occurrence of a Change in\nControl, the Employer desires to enter into this Agreement with the Executive to\nprovide the Executive with certain benefits in the event his employment is\nterminated as a result of, or in connection with, a Change in Control and to\nprovide the Executive with certain other benefits whether or not the Executive's\nemployment is terminated.\n\n                                    AGREEMENT\n\n     NOW, THEREFORE, in consideration of the respective agreements of the\nparties contained herein and other good and valuation consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is agreed as follows:\n\n     1.   TERM OF AGREEMENT. This Agreement shall commence as of the date hereof\nand shall continue in effect until the date the Executive's employment by the\nCompany is terminated; provided, however, that if the Executive's employment is\nterminated following, or in anticipation of, a Change in Control, the term shall\ncontinue in effect until all payments and benefits have been made or provided to\nthe Executive hereunder.\n\n     2.   DEFINITIONS\n\n          2.1 ACCRUED COMPENSATION. For purposes of this Agreement, \"Accrued\nCompensation\" shall mean an amount which shall include all amounts earned \n\n\n\n\n\n\nor accrued through the \"Termination Date\" (as hereinafter defined) but not paid\nas of the Termination Date including (i) base salary, (ii) reimbursement for\nreasonable and necessary expenses incurred by the Executive on behalf of the\nCompany during the period ending on the Termination Date, (iii) paid time off\n(to the extent provided by Company policy or applicable law), and (iv) 100% of\nany target bonus with respect to the Company's fiscal year ended prior to the\nTermination Date to the extent a bonus for such year has not been awarded and\npaid prior to the Termination Date.\n\n     2.2 BASE AMOUNT. For purposes of this Agreement, \"Base Amount\" shall mean\nthe greater of (a) the Executive's annual base salary, at the rate in effect\nimmediately prior to the Change in Control and (b) the Executive's annual base\nsalary, at the rate in effect on the Termination Date.\n\n     2.3 BONUS AMOUNT. For purposes of this Agreement, \"Bonus Amount\" shall mean\nthe annual average of the cash and fair market value (when paid or awarded and\ncalculated without regard to any vesting requirement) of stock or other property\npaid to the Executive (including amounts that would have been paid if they had\nnot been deferred) under the Company's annual incentive bonus plan for the three\nyears immediately preceding the year in which the Executive's employment\nterminates (disregarding for these purposes any year during such 3 year period\nthat Executive did not work a full year), or for such shorter period that the\nExecutive has been employed by the Company. If the Executive's employment is\nterminated in the Executive's first year of employment, \"Bonus Amount\" shall\nmean 100% of the target bonus that the Executive would have been eligible to\nreceive for such year.\n\n     2.4 CAUSE. For purposes of this Agreement, a termination of employment is\nfor \"Cause\" if the Executive has been convicted of a felony involving fraud or\ndishonesty or the termination is evidenced by a resolution adopted in good faith\nby at least two-thirds of the Board that the Executive: (i) intentionally and\ncontinually failed substantially to perform his reasonably assigned duties with\nthe Company (other than a failure resulting from the Executive's incapacity due\nto physical or mental illness or from the Executive's assignment of duties that\nwould constitute \"Good Reason\" as hereinafter defined) which failure continued\nfor a period of at least thirty (30) days after a written notice of demand for\nsubstantial performance has been delivered to the Executive specifying the\nmanner in which the Executive has failed substantially to perform or (ii)\nintentionally engaged in conduct which is demonstrably and materially injurious\nto the Company; provided, however, that no termination of the Executive's\nemployment shall be for Cause as set forth in clause (ii) above until (x) there\nshall have been delivered to the Executive a copy of a written notice setting\nforth that the Executive was guilty of the conduct set forth in clause (ii) and\nspecifying the particulars thereof in detail and (y) the Executive shall have\nbeen provided an opportunity to be heard in person by the Board (with the\nassistance of the Executive's counsel if the Executive so desires). Neither an\nact nor a failure to act, on the Executive's part shall be considered\n\"intentional\" unless the Executive has acted or failed to act with a lack of\ngood faith and with a lack of reasonable belief that the Executive's action or\nfailure to act was in the best interest of the Company. Notwithstanding anything\ncontained in this Agreement to the contrary, no\n\n\n\n                                       2\n\n\nfailure to perform by the Executive after a Notice of Termination is given by\nthe Executive shall constitute Cause for purposes of this Agreement.\n\n     2.5  CHANGE IN CONTROL. For purposes of this Agreement, a \"Change in\nControl\" shall mean any of the following events:\n\n          (a) An acquisition (other than directly from the Trust) of any voting \nsecurities of the Trust (the \"Voting Securities\") by any \"Person\" (as the term\nperson is used for purposes of Section 13(d) or 14(d) of the Securities Exchange\nAct of 1934, as amended (the \"1934 Act\")), immediately after which such Person\nhas \"Beneficial Ownership\" (within the meaning of Rule 13d-3 promulgated under\nthe 1934 Act) of 30% or more of the combined voting power of the Trust's then\noutstanding Voting Securities; provided, however, that in determining whether a\nChange in Control has occurred, Voting Securities which are acquired in a\n\"Non-Control Acquisition\" (as hereinafter defined) shall not constitute an\nacquisition which would cause a Change in Control. A \"Non-Control Acquisition\"\nshall mean an acquisition by (i) an employee benefit plan (or a trust forming a\npart thereof) maintained by (x) the Company or (y) any corporation or other\nPerson of which a majority of its voting power or its equity securities or\nequity interest is owned directly or indirectly by the Company (a \"Subsidiary\"),\n(ii) the Company or any Subsidiary or (iii) any Person in connection with a\n\"Non-Control Transaction\" (as hereinafter defined).\n\n          (b) Approval by shareholders of the Trust:\n\n               (i) A merger, consolidation or reorganization involving the\n          Trust, if:\n\n                    (A) the shareholders of the Trust, immediately before such\n               merger, consolidation or reorganization, fail to own, directly or\n               indirectly, immediately following such merger, consolidation or\n               reorganization, at least seventy percent (70%) of the combined\n               voting power of the outstanding Voting Securities of the entity\n               resulting from such merger or consolidation or reorganization\n               (the \"Surviving Corporation\") in substantially the same\n               proportion as their ownership of the Voting Securities\n               immediately before such merger, consolidation or reorganization;\n               and\n\n                    (B) the individuals who were members of the Incumbent Board\n               immediately prior to the execution of the agreement providing for\n               such merger, consolidation or reorganization do not constitute at\n               least a majority of the members of the board of directors of the\n               Surviving Corporation or a corporation beneficially owning,\n               directly or indirectly, a majority of the Voting Securities of\n               the Surviving Corporation.\n\n\n\n                                       3\n\n\n               (A merger, consolidation or reorganization involving the Trust\n               which fails to satisfy the conditions described in clauses (A)\n               and (B) shall herein be referred to as a \"Non-Control\n               Transaction.\");\n\n               (ii) A complete liquidation or dissolution of the Trust; or\n\n               (iii) An agreement for the sale or other disposition of all or\n          substantially all of the assets of the Trust to any Person (other than\n          to an entity of which the Trust directly or indirectly owns at least\n          70% of the voting shares).\n\nNotwithstanding the foregoing, a Change in Control shall not be deemed to occur\nsolely because any Person (the \"Subject Person\") acquired Beneficial Ownership\nof more than the permitted amount of the outstanding Voting Securities as a\nresult of the acquisition of Voting Securities by the Trust which, by reducing\nthe number of Voting Securities outstanding, increases the proportional number\nof shares Beneficially Owned by the Subject Person, provided that if a Change in\nControl would occur (but for the operation of this sentence) as a result of the\nacquisition of Voting Securities by the Trust, and after such share acquisition\nby the Trust, the Subject Person becomes the Beneficial Owner of any additional\nVoting Securities which increases the percentage of the then outstanding Voting\nSecurities Beneficially Owned by the Subject Person, then a Change in Control\nshall occur.\n\n          (c) The rejection by the voting Beneficial Owners of the outstanding\nShares of the entire slate of trustees that the Board proposes at a single\nelection of trustees.\n\n          (d) The rejection by the voting Beneficial Owners of the outstanding\nShares of one-half or more of the trustees that the Board proposes over any two\nor more consecutive elections of trustees.\n\n          (e) Notwithstanding anything contained in this Agreement to the\ncontrary, if the Executive's employment is terminated prior to a Change in\nControl and the Executive reasonably demonstrates that such termination: (i) was\nat the request of a third party who has indicated an intention or taken steps\nreasonably calculated to effect a Change in Control and who effectuates a Change\nin Control (a \"Third Party\") or (ii) otherwise occurred in connection with, or\nin anticipation of, a Change in Control which actually occurs, then for all\npurposes of this Agreement, the date of a Change in Control with respect to the\nExecutive shall mean the date immediately prior to the date of such termination\nof the Executive's employment.\n\n     2.6 COMPANY. For purposes of this Agreement, the \"Company\" shall include\nthe Company's \"Successors and Assigns\" (as hereinafter defined).\n\n\n                                       4\n\n\n     2.7  DISABILITY. For purposes of this Agreement, \"Disability\" shall mean a\nphysical or mental infirmity that entitles the Executive to benefits under the\nCompany sponsored long-term disability plan in which he or she participates.\n\n     2.8 GOOD REASON.\n\n     (a)  For purposes of this Agreement, \"Good Reason\" shall mean the \noccurrence after a Change in Control of any of the events or conditions\ndescribed in subsections (i) through (viii) hereof:\n\n               (i) a change in the Executive's status, position or\n          responsibilities (including reporting responsibilities) which, in the\n          Executive's reasonable judgment, represents an adverse change (other\n          than an immaterial or de minimus adverse change) from his status,\n          position or responsibilities as in effect at any time within 180 days\n          preceding the date of a Change in Control or at any time thereafter;\n          the Executive no longer reports to the chief executive officer of the\n          Company (if the Executive reported to such officer prior to the Change\n          in Control); the assignment to the Executive of any duties or\n          responsibilities which, in the Executive's reasonable judgment, are\n          inconsistent with his status, title, position or responsibilities as\n          in effect at any time within 180 days preceding the date of a Change\n          in Control or at any time thereafter; or any removal of the Executive\n          from or failure to reappoint or reelect him to any of such offices or\n          positions held prior to the Change in Control, except in connection\n          with the termination of his employment for Disability, Cause, as a\n          result of his death or by the Executive other than for Good Reason;\n\n               (ii) a reduction in the Executive's base salary or any failure to\n          pay the Executive any compensation or benefits to which he is entitled\n          within five days of written notice thereof;\n\n               (iii) the Company's requiring the Executive to be based at any\n          place outside a 25-mile radius from the Executive's principal location\n          of business prior to the Change in Control, except for reasonably\n          required travel on the Company's business which is not materially\n          greater than such travel requirements prior to the Change in Control;\n\n               (iv) the failure by the Company to provide the Executive with\n          compensation and benefits, in the aggregate, at least equal (in terms\n          of benefit levels and\/or reward opportunities which opportunities will\n          be evaluated in light of the performance requirements therefor) to\n          those provided for under each other employee compensation and benefit\n          plan, program and practice in which the Executive was participating at\n          any time within 180 days preceding the date of a Change in Control or\n          at any time thereafter;\n\n\n\n                                       5\n\n               (v) the insolvency or the filing (by any party, including the\n          Company) of a petition for bankruptcy of the Company, which petition\n          is not dismissed within sixty (60) days;\n\n               (vi) any material breach by the Company of any provision of this\n          Agreement;\n\n               (vii) any purported termination of the Executive's employment for\n          Cause by the Company which does not comply with the terms of Section\n          2.4; or\n\n               (viii) the failure of the Company to obtain an agreement,\n          satisfactory to the Executive, from any Successors and Assigns to\n          assume and agree to perform this Agreement, as contemplated in Section\n          6 hereof.\n\n     (b)  Any event or condition described in Section 2.8(a)(i) through (viii)\nwhich occurs prior to a Change in Control but which the Executive reasonably\ndemonstrates (i) was at the request of a Third Party or (ii) otherwise arose in\nconnection with, or in anticipation of, a Change in Control which actually\noccurs, shall constitute Good Reason for purposes of this Agreement\nnotwithstanding that it occurred prior to the Change in Control.\n\n     (c)  The Executive's right to terminate his employment pursuant to this\nSection 2.8 shall not be affected by his incapacity due to a Disability.\n\n     2.9. NOTICE OF TERMINATION. For purposes of this Agreement, following a\nChange in Control, \"Notice of Termination\" shall mean a written notice of\ntermination from the Company of the Executive's employment which indicates a\nspecific termination provision in this Agreement relied upon and which sets\nforth in reasonable detail the facts and circumstances claimed to provide a\nbasis for termination of the Executive's employment under the provision so\nindicated.\n\n     2.10. PRO RATA BONUS. For purposes of this Agreement, \"Pro Rata Bonus\"\nshall mean an amount equal to 100% of the target bonus that the Executive would\nhave been eligible to receive for the Company's fiscal year in which the\nExecutive's employment terminates, multiplied by a fraction, the numerator of\nwhich is the number of days in such fiscal year through the Termination Date and\nthe denominator of which is 365.\n\n     2.11. SUCCESSORS AND ASSIGNS. For purposes of this Agreement, \"Successors\nand Assigns\" shall mean a corporation or other entity acquiring all or\nsubstantially all the Voting Securities, assets or business of the Trust whether\nby operation of law or otherwise, and any affiliate of such Successors and\nAssigns.\n\n     2.12. TERMINATION DATE. For purposes of this Agreement, \"Termination Date\"\nshall mean (a) in the case of the Executive's death, his date of death, (b) in\nthe case of \n\n\n\n                                       6\n\n\nGood Reason, the last day of his employment and (c) in all other cases, the date\nspecified in the Notice of Termination or if no Notice of Termination is sent,\nthe last day of his employment; provided, however, that if the Executive's\nemployment is terminated by the Company due to Disability, the date specified in\nthe Notice of Termination shall be the 30th day after receipt of the Notice of\nTermination by the Executive, provided that the Executive shall not have\nreturned to the full-time performance of his duties within 30 days after such\nreceipt.\n\n     3.   TERMINATION OF EMPLOYMENT. If the Executive's employment with the\nCompany shall be terminated within twenty-four (24) months following a Change in\nControl, the Executive shall be entitled to the following compensation and\nbenefits:\n\n          (a) If the Executive's employment with the Company shall be terminated\n(i) by the Company for Cause or Disability, (ii) by reason of the Executive's\ndeath or (iii) by the Executive other than for Good Reason, the Employer shall\npay to the Executive the Accrued Compensation; provided, however, any incentive\ncompensation shall not be paid in the case of a termination by the Company for\nCause; and provided, further that, if an employment agreement is in existence\nbetween the Company and the Executive on the Termination Date, the Employer\nand\/or its affiliates, as the case may be, shall also pay to the Executive any\namounts owed to the Executive pursuant to such employment agreement, but only to\nthe extent such amounts are not duplicative of amounts otherwise payable\nhereunder.\n\n          (b) If the Executive's employment with the Company shall be terminated\nfor any reason other than as specified in Section 3(a), the Executive shall be\nentitled to the following:\n\n               (i) the Employer shall pay the Executive all Accrued Compensation\n          and a Pro Rata Bonus;\n\n               (ii) the Employer shall pay the Executive as severance pay and in\n          lieu of any further compensation for periods subsequent to the\n          Termination Date, in a single payment an amount in cash equal to two\n          and a half (2 1\/2) times the sum of (A) the Base Amount and (B) the\n          Bonus Amount; provided, however, if an employment agreement is in\n          existence between the Company and the Executive on the Termination\n          Date, any amount due the Executive under this Section 3(b)(ii) shall\n          be reduced by the amount of Base Amount and Bonus Amount paid as\n          severance pay to Executive pursuant to such employment agreement in\n          lieu of compensation for periods subsequent to the Termination Date.\n\n               (iii) for thirty (30) months following the Termination Date, (the\n          \"Continuation Period\"), the Employer shall at its expense continue on\n          behalf of the Executive and his dependents and beneficiaries the\n          medical, dental, life, disability and hospitalization benefits\n          provided (A) to the Executive at any time during the 90-day period\n          prior to the Change in \n\n\n\n\n                                       7\n\n\n          Control or at any time thereafter (and if different benefits were paid\n          during such period, such of those benefits as are elected by the\n          Executive) or (B) to other similarly situated executives who continue\n          in the employ of the Company during the Continuation Period. The\n          coverage and benefits (including deductibles and costs) provided in\n          this Section 3(b)(iii) during the Continuation Period shall be no less\n          favorable to the Executive and his dependents and beneficiaries than\n          the most favorable of such coverages and benefits during any of the\n          periods referred to in clauses (A) and (B) above. The Employer's\n          obligation hereunder with respect to the foregoing benefits shall be\n          compromised to the extent that the Executive obtains any such benefits\n          pursuant to a subsequent employer's benefit plans, in which case the\n          Employer may reduce the coverage of any benefits it is required to\n          provide the Executive hereunder as long as the aggregate coverages and\n          benefits of the combined benefits plans is no less favorable to the\n          Executive than the coverages and benefits required to be provided\n          hereunder. This subsection (iii) shall not be interpreted so as to\n          limit any benefits to which the Executive, his dependents or\n          beneficiaries may be otherwise entitled under any of the Company's\n          employee benefit plans, programs or practices following the\n          Executive's termination of employment, including without limitation,\n          retiree medical and life insurance benefits;\n\n               (iv) all theretofore unvested share options, restricted options,\n          restricted share and other awards issued to the Executive pursuant to\n          the Company's Share Option and Share Award Plan, and all unvested\n          benefits under any split dollar life insurance policies insuring the\n          Executive's life, shall immediately become 100% vested; and\n\n               (v) a payment from the Employer equal to the unvested amount\n          contained in the Executive's accounts in the Company's 401(k) plan (or\n          any other qualified plan of the Company or an affiliate) which he or\n          she will forfeit as a result of his or her termination.\n\n     (c)  The amounts provided for in Sections 3(a) and 3(b)(i) and (ii) shall \nbe paid in a single lump sum cash payment in immediately available funds within\nfive (5) days after the Executive's Termination Date (or earlier, if required by\napplicable law).\n\n     (d)  The Executive shall not be required to mitigate the amount of any\npayment provided for in this Agreement by seeking other employment or otherwise\nand no such payment shall be offset or reduced by the amount of any compensation\nor benefits provided to the Executive in any subsequent employment except as\nprovided in Section 3(b)(iii).\n\n     (e)  The Executive's entitlement to any other compensation or benefits or\nany indemnification shall be determined in accordance with the Company's\nemployee \n\n\n\n                                       8\n\n\nbenefit plans and other applicable programs, policies and practices or any\nindemnification agreement in effect.\n\n     4. NOTICE OF TERMINATION. Following a Change in Control, any purported\ntermination of the Executive's employment by the Company shall be communicated\nby Notice of Termination to the Executive. For purposes of this Agreement, no\nsuch purported termination shall be effective without such Notice of\nTermination.\n\n     5. EXCISE TAX GROSS-UP.\n\n     (a) Notwithstanding anything contained in this Agreement to the contrary,\nin the event it is determined (pursuant to (b) below) or finally determined (as\ndefined in (c)(iii) below) that any payment, distribution, transfer, benefit or\nother event with respect to the Company or its predecessors, successors, direct\nor indirect subsidiaries or affiliates (or any predecessor, successor or\naffiliate of any of them, and including any benefit plan of any of them), to or\nfor the benefit of Executive or Executive's dependents, heirs or beneficiaries\n(whether such payment, distribution, transfer, benefit or other event occurs\npursuant to the terms of this Agreement or otherwise, but determined without\nregard to any additional payments required under this Section 5) (each a\n\"Payment\" and collectively the \"Payments\") is or was subject to the excise tax\nimposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and\nany successor provision or any comparable provision of state or local income tax\nlaw (collectively, \"Section 4999\"), or any interest, penalty or addition to tax\nis or was incurred by Executive with respect to such excise tax (such excise\ntax, together with any such interest, penalty or addition to tax, hereinafter\ncollectively referred to as the \"Excise Tax\"), then, within 10 days after such\ndetermination or final determination, as the case may be, the Employer shall pay\nto Executive an additional cash payment (hereinafter referred to as the\n\"Gross-Up Payment\") in an amount such that after payment by Executive of all\ntaxes, interest, penalties and additions to tax imposed with respect to the\nGross-Up Payment (including, without limitation, any income and excise taxes\nimposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up\nPayment equal to the Excise Tax imposed upon such Payment or Payments. This\nprovision is intended to put Executive in the same position as Executive would\nhave been had no Excise Tax been imposed upon or incurred as a result of any\nPayment.\n\n     (b) Except as provided in subsection (c) below, the determination that a\nPayment is subject to an Excise Tax shall be made in writing by a nationally\nrecognized certified public accounting firm selected by Executive (\"Executive's\nAccountant\"). Such determination shall include the amount of the Gross-Up\nPayment and detailed computations thereof, including any assumptions used in\nsuch computations (the written determination of the Executive's Accountant,\nhereinafter, the \"Executive's Determination\"). The Executive's Determination\nshall be reviewed on behalf of the Company by a nationally recognized certified\npublic accounting firm selected by the Company (the \"Company's Accountant\"). The\nCompany shall notify Executive within 10 business days after receipt of the\nExecutive's Determination of any disagreement or dispute therewith, and failure\nto so notify within that period shall be considered an \n\n\n\n                                       9\n\n\nagreement by the Company with the Executive's Determination, obligating the\nEmployer to make payment as provided in subsection (a) above within 10 days from\nthe expiration of such 10 business-day period. In the event of an objection by\nthe Company to the Executive's Determination, any amount not in dispute shall be\npaid within 10 days following the 10 business-day period referred to herein, and\nwith respect to the amount in dispute the Executive's Accountant and the\nCompany's Accountant shall jointly select a third nationally recognized\ncertified public accounting firm to resolve the dispute and the decision of such\nthird firm shall be final, binding and conclusive upon the Executive and the\nCompany. In such a case, the third accounting firm's findings shall be deemed\nthe binding determination with respect to the amount in dispute, obligating the\nEmployer to make any payment as a result thereof within 10 days following the\nreceipt of such third accounting firm's determination. All fees and expenses of\neach of the accounting firms referred to in this Section 5 shall be borne solely\nby the Employer.\n\n     (c)  (i) Executive shall notify the Company in writing of any claim by the\n          Internal Revenue Service (or any successor thereof) or any state or\n          local taxing authority (individually or collectively, the \"Taxing\n          Authority\") that, if successful, would require the payment by the\n          Employer of a Gross-Up Payment. Such notification shall be given as\n          soon as practicable but no later than 30 days after Executive receives\n          written notice of such claim and shall apprise the Company of the\n          nature of such claim and the date on which such claim is requested to\n          be paid; provided, however, that failure by Executive to give such\n          notice within such 30-day period shall not result in a waiver or\n          forfeiture of any of Executive's rights under this Section 5 except to\n          the extent of actual damages suffered by the Company as a result of\n          such failure. Executive shall not pay such claim prior to the\n          expiration of the 15-day period following the date on which Executive\n          gives such notice to the Company (or such shorter period ending on the\n          date that any payment of taxes, interest, penalties or additions to\n          tax with respect to such claim is due). If the Company notifies\n          Executive in writing prior to the expiration of such 15-day period\n          that it desires to contest such claim (and demonstrates to the\n          reasonable satisfaction of Executive its ability to make the payments\n          to Executive which may ultimately be required under this section\n          before assuming responsibility for the claim), Executive shall:\n\n               (A) give the Company any information reasonably requested by the\n          Company relating to such claim;\n\n               (B) take such action in connection with contesting such claim as\n          the Company shall reasonably request in writing from time to time,\n          including, without limitation, accepting legal representation with\n          respect to such claim by an attorney selected by the Company that is\n          reasonably acceptable to Executive;\n\n\n\n                                       10\n\n               (C) cooperate with the Company in good faith in order effectively\n          to contest such claim; and\n\n               (D) permit the Company to participate in any proceedings relating\n          to such claim; provided, however, that the Employer (including\n          additional interest, penalties and additions to tax) incurred in\n          connection with such contest and shall indemnify and hold Executive\n          harmless, on an after-tax basis, for all taxes (including, without\n          limitation, income and excise taxes), interest, penalties and\n          additions to tax imposed in relation to such claim and in relation to\n          the payment of such costs and expenses or indemnification. Without\n          limitation on the foregoing provisions of this Section 5, and to the\n          extent its actions do not unreasonably interfere with or prejudice\n          Executive's disputes with the Taxing Authority as to other issues, the\n          Company shall control all proceedings taken in connection with such\n          contest and, at its sole option, may pursue or forego any and all\n          administrative appeals, proceedings, hearings and conferences with the\n          taxing authority in respect of such claim and may, at its sole option,\n          either direct Executive to pay the tax, interest or penalties claimed\n          and sue for a refund or contest the claim in any permissible manner,\n          and Executive agrees to prosecute such contest to a determination\n          before any administrative tribunal, in a court of initial jurisdiction\n          and in one or more appellate courts, as the Company shall determine;\n          provided, however, that if the Company directs Executive to pay such\n          claim and sue for a refund, the Employer shall advance an amount equal\n          to such payment to Executive, on an interest-free basis, and shall\n          indemnify and hold Executive harmless, on an after-tax basis, from all\n          taxes (including, without limitation, income and excise taxes),\n          interest, penalties and additions to tax imposed with respect to such\n          advance or with respect to any imputed income with respect to such\n          advance; and, further, provided, that any extension of the statute of\n          limitations relating to payment of taxes, interest, penalties or\n          additions to tax for the taxable year of Executive with respect to\n          which such contested amount is claimed to be due is limited solely to\n          such contested amount; and, provided, further, that any settlement of\n          any claim shall be reasonably acceptable to Executive and the\n          Company's control of the contest shall be limited to issues with\n          respect to which a Gross-Up Payment would be payable hereunder, and\n          Executive shall be entitled to settle or contest, as the case may be,\n          any other issue.\n\n          (ii) If, after receipt by Executive of an amount advanced by the\n          Employer pursuant to Section 5(c)(i), Executive receives any refund\n          with respect to such claim, Executive shall (subject to the Company's\n          complying with the requirements of Section 5) promptly pay to the\n          Employer an amount equal to such refund (together with any interest\n          paid or credited thereon after taxes applicable thereto), net of any\n          taxes (including without limitation any income or excise taxes),\n          interest, \n\n\n\n                                       11\n\n\n          penalties or additions to tax and any other costs incurred by\n          Executive in connection with such advance, after giving effect to such\n          repayment. If, after the receipt by Executive of an amount advanced by\n          the Employer pursuant to Section 5(c)(i), it is finally determined\n          that Executive is not entitled to any refund with respect to such\n          claim, then such advance shall be forgiven and shall not be required\n          to be repaid and the amount of such advance shall be treated as a\n          Gross-Up Payment and shall offset, to the extent thereof, the amount\n          of any Gross-Up Payment otherwise required to be paid.\n\n          (iii) For purposes of this Section 5, whether the Excise Tax is\n          applicable to a Payment shall be deemed to be \"finally determined\"\n          upon the earliest of: (A) the expiration of the 15-day period referred\n          to in paragraph (c)(i) above if the Company has not notified Executive\n          that it intends to contest the underlying claim, (B) the expiration of\n          any period following which no right of appeal exists, (C) the date\n          upon which a closing agreement or similar agreement with respect to\n          the claim is executed by Executive and the Taxing Authority (which\n          agreement may be executed only in compliance with this Section 5), (D)\n          the receipt by Executive of notice from the Company that it no longer\n          seeks to pursue a contest (which notice shall be deemed received if\n          the Company does not, within 15 days following receipt of a written\n          inquiry from Executive, affirmatively indicate in writing to Executive\n          that the Company intends to continue to pursue such contest).\n\n     (d)  As a result of uncertainty in the application of Section 4999 that may\n          exist at the time of any determination that a Gross-Up Payment is due,\n          it may be possible that in making the calculations required to be made\n          hereunder, the parties or their accountants shall determine that a\n          Gross-Up Payment need not be made (or shall make no determination with\n          respect to a Gross-Up Payment) that properly should be made\n          (\"Underpayment\"), or that a Gross-Up Payment not properly needed to be\n          made should be made (\"Overpayment\"). The determination of any\n          Underpayment shall be made using the procedures set forth in paragraph\n          (b) above and shall be paid to Executive as an additional Gross-Up\n          Payment. The Company shall be entitled to use procedures similar to\n          those available to Executive in paragraph (b) to determine the amount\n          of any Overpayment (provided that the Company shall bear all costs of\n          the accountants as provided in paragraph (b)). In the event of a\n          determination that an Overpayment was made, any such Overpayment shall\n          be treated for all purposes as a loan to Executive with interest at\n          the applicable Federal rate provided for in Section 1274(d) of the\n          Code; provided, however, that the amount to be repaid by Executive to\n          the Employer shall be subject to reduction to the extent necessary to\n          put Executive in the same after-tax position as if such Overpayment\n          were never made.\n\n\n\n                                       12\n\n\n     6. SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding upon and\nshall inure to the benefit of the Company, its Successors and Assigns, and the\nCompany shall require any Successors and Assigns to expressly assume and agree\nto perform this Agreement in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession or assignment had\ntaken place. Neither this Agreement nor any right or interest hereunder shall be\nassignable or transferable by the Executive, his beneficiaries or legal\nrepresentatives, except by will or by the laws of descent and distribution. This\nAgreement shall inure to the benefit of and be enforceable by the Executive's\nlegal personal representative.\n\n     7. FEES AND EXPENSES. The Company shall pay all legal fees and related\nexpenses (including the costs of experts, evidence and counsel) incurred by the\nExecutive as a result of the Executive obtaining or enforcing any right or\nbenefit provided by this Agreement (including, but not limited to, any such fees\nand expenses incurred in connection with the Dispute). Furthermore, any amounts\ndue Executive by the Company that are not paid when due under this Agreement\nshall bear interest at the Prime Rate (as declared by Bank of America, N.A. from\ntime to time) plus 5% from the time when the payment is due until the date the\npayment is made.\n\n     8. NOTICE. For the purposes of this Agreement, notices and all other\ncommunications provided for in the Agreement (including the Notice of\nTermination) shall be in writing and shall be deemed to have been duly given\nwhen personally delivered or sent by certified mail, return receipt requested,\npostage prepaid, by overnight courier or by facsimile, addressed to the\nrespective addresses and facsimile numbers last given by each party to the\nother, provided that all notices to the Company shall be directed to the\nattention of the Board with a copy to the Secretary of the Company. All notices\nand communications shall be deemed to have been received on the date of delivery\nthereof or on the third business day after the mailing thereof, except that\nnotice of change of address shall be effective only upon receipt.\n\n     9. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or\nlimit the Executive's continuing or future participation in any benefit, bonus,\nincentive or other plan or program provided by the Company (except for any\nseverance or termination policies, plans, programs or practices) and for which\nthe Executive may qualify, nor shall anything herein limit or reduce such rights\nas the Executive may have under any other agreements with the Company (except\nfor any severance or termination agreement). Amounts which are vested benefits\nor which the Executive is otherwise entitled to receive under any plan or\nprogram of the Company shall be payable in accordance with such plan or program,\nexcept as explicitly modified by this Agreement.\n\n     10. NO GUARANTEED EMPLOYMENT. The Executive and the Company acknowledge\nthat, except as may otherwise be provided under any other written agreement\nbetween the Executive and the Company, the employment of the Executive by the\nCompany is \"at will\" and may be terminated by either the Executive or the\n\n\n\n                                       13\n\n\n\nCompany at any time, subject, however to the rights of the Executive provided\nherein in the event of any such termination.\n\n     11. SETTLEMENT OF CLAIMS. The Employer's obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations\nhereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which\nthe Company may have against the Executive or others.\n\n     12. FULL SATISFACTION; WAIVER AND RELEASE. As a condition to receiving the\npayments and benefits hereunder, the Executive shall execute a document in\ncustomary form, releasing and waiving any and all claims, causes of actions and\nthe like against the Company and its successors, shareholders, officers,\ntrustees, agents and employees, regarding all matters relating to the\nExecutive's service as an employee of the Company or any affiliates and the\ntermination of such relationship. Such claims include, without limitation, any\nclaims arising under Age Discrimination in Employment Act of 1967, as amended\n(the \"ADEA\"); Title VII of the Civil Rights Act of 1964, as amended; the Civil\nRights Act of 1991, as amended; the Equal Pay Act of 1962; the American\nDisabilities Act of 1990; the Family Medical Leave Act, as amended; the Employee\nRetirement Income Security Act of 1976, as amended; or any other federal, state\nor local statute or ordinance, but exclude any claims that arise out of an\nasserted breach of the terms of this Agreement or current or future claims\nrelated to the matters described in Paragraph 9.\n\n     13. MISCELLANEOUS. No provision of this Agreement may be modified, waived\nor discharged unless such waiver, modification or discharge is agreed to in\nwriting and signed by the Executive, the Trust and Employer. No waiver by either\nparty hereto at any time of any breach by the other party hereto of, or\ncompliance with, any condition or provisions of this Agreement to be performed\nby such other party shall be deemed a waiver of similar or dissimilar provisions\nor conditions at the same or at any prior or subsequent time. No agreement or\nrepresentations, oral or otherwise, express or implied, with respect to the\nsubject matter hereof have been made by either party which are not expressly set\nforth in this Agreement.\n\n     14. GOVERNING LAW. This Agreement shall be governed by and construed and\nenforced in accordance with the laws of the State of Illinois without giving\neffect to the conflict of laws principles thereof. Any action brought by any\nparty to this Agreement shall be brought and maintained in a court of competent\njurisdiction in Cook County in the State of Illinois.\n\n     15. SEVERABILITY. The provisions of this Agreement shall be deemed\nseverable and the invalidity or unenforceability of any provision shall not\naffect the validity or enforceability of the other provisions hereof.\n\n     16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement\nbetween the parties hereto and supersedes all prior agreements, if any,\nunderstandings \n\n\n\n                                       14\n\n\nand arrangements, oral or written, between the Company and Executive with\nrespect to the subject matter hereof, including any prior \"Change in Control\"\nagreement.\n\n     IN WITNESS WHEREOF, the Trust and the Employer has caused this Agreement to\nbe executed by its duly authorized officer and the Executive has executed this\nAgreement as of the day and year first above written.\n\n                                  EQUITY OFFICE PROPERTIES TRUST\n\n\n                                  By:     \/s\/ Stanley M. Stevens\n                                          ----------------------\n                                  Name:   Stanley M. Stevens\n                                  Title:  Executive Vice President, Chief Legal\n                                          Counsel and Secretary\n\n\n                                  EQUITY OFFICE PROPERTIES MANAGEMENT CORP.\n\n                                  By:     \/s\/ Stanley M. Stevens\n                                          ----------------------\n                                  Name:   Stanley M. Stevens\n                                        --------------------\n                                  Title:  Vice President\n                                         ---------------\n                                       \n                                  \/s\/ Richard D. Kincaid\n                                  ----------------------\n                                  RICHARD D. KINCAID\n\n     For and in consideration of the benefits hereunder to Employer, the\nwholly-owned subsidiary of the undersigned, the undersigned does hereby\nunconditionally guarantee the obligations of Employer hereunder.\n\n\n                                  EOP OPERATING LIMITED PARTNERSHIP\n\n                                  By:     Equity Office Properties Trust, its \n                                          general partner\n\n                                  By:     \/s\/ Stanley M. Stevens\n                                          ----------------------\n                                  Name:   Stanley M. Stevens\n                                  Title:  Executive Vice President, Chief Legal \n                                          Counsel and Secretary\n\n\n\n\n\n\n                                       15\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7468],"corporate_contracts_industries":[9489],"corporate_contracts_types":[9539,9551],"class_list":["post-38571","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-equity-office-properties-trust","corporate_contracts_industries-real__reits","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38571","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38571"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38571"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38571"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38571"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}