{"id":40126,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/non-competition-agreement-equity-office-properties-trust-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"non-competition-agreement-equity-office-properties-trust-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/non-competition-agreement-equity-office-properties-trust-and.html","title":{"rendered":"Non-Competition Agreement &#8211; Equity Office Properties Trust and Samuel Zell"},"content":{"rendered":"<pre>\n                       NON-COMPETITION AGREEMENT\n\n     THIS NON-COMPETITION AGREEMENT (the 'Agreement') is made and entered into\nas of the 30th day of May, 1997, by and between EQUITY OFFICE PROPERTIES TRUST,\na Maryland real estate investment trust (the 'Company') and SAMUEL ZELL (the\n'Trustee').\n\n                                RECITALS\n\n     A. The Company and the related entities listed on Exhibit A attached\nhereto and various subsidiaries thereof (the 'Operating Subsidiaries') are\nengaged in the business of owning, operating, buying, selling, financing and\nmanaging office and parking facility properties throughout the United States\n(the 'Business').\n\n     B. The Trustee has been associated with the Company as a trustee since the\nCompany was formed.  As a trustee of the Company, the Trustee will have access\nto the Company's business plans, financial data and other highly confidential\nmatters.\n\n     C. The Company desires to have the Trustee enter into this Agreement in\norder to protect the Company and the Operating Subsidiaries from unfair\ncompetition.  The Trustee is willing to enter into this Agreement as further\ninducement for the Company's acquisition of the Management Business (as defined\nin that certain Contribution Agreement dated as of April 30, 1997 among the\nCompany, certain affiliates of the Trustee and the other parties thereto).\n\n     NOW, THEREFORE, for good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged by the Company and the Trustee,\nthe parties hereto agree as follows:\n\n     1. Covenant Not to Compete.  Subject to Section 2 below, the Trustee\nhereby agrees that during the term hereof, the Trustee shall not compete, in\nany manner directly or indirectly, on his own behalf, or on behalf of any\ncorporation, partnership, trust, joint venture, individual or other entity,\nwith the Business of the Company or any of the Operating Subsidiaries.  As\nrequired by Maryland law (but throughout the entire term of this Agreement),\nthe Trustee hereby agrees that any potential acquisitions of office and\/or\nparking facility properties located in the United States of which he is aware\nwill be offered to the Company.\n\n     2. Permitted Activities.  The restrictions against competition contained\nin Section 1 above shall not prohibit the Trustee, in any manner, directly or\nindirectly, on his own behalf or on behalf of any corporation, partnership,\ntrust, joint venture, individual or other entity, from engaging in:\n\n     (i) other activities related to real estate or the office property or\nparking facility business which do not compete with the Business;\n\n     (ii) the Business with respect to Trustee's activities undertaken through\nTrustee's ownership interest in various entities which own the office\nproperties and parking facility listed on Exhibit B attached hereto;\n\n     (iii) the acquisition, operation, development, management, leasing or\ndisposition of any office or parking facility properties which competes with\nthe Business by any\n\n\n\n\n\n\nentity (an 'Investment Entity') in which Trustee owns or acquires an equity\ninterest (including interests as a general partner) either (xx) as a passive\ninvestor having no managerial or similar role with respect to such property or\n(yy) to the extent permitted by Maryland law, where the Investment Entity owned\nthe properties which are competitive with the Business prior to the Trustee's\ninvestment therein, the ownership and operation of such properties is\nincidental to the primary business activities of the Investment Entity, and\nsubject to the rights of third party contractors, Trustee exercises his\ncommercially reasonable best efforts to cause Equity Office Properties\nManagement Corp. to enjoy a right of first refusal for the management of such\nproperties; and\n\n     (iv) the Business during the 'Tail Period' (as defined in Section 3 below)\nso long as such activities relate to existing or proposed (a) office properties\nwhich are or will be located at least twenty-five (25) miles from any other\noffice property or (b) parking facilities which are or will be located at least\ntwenty-five (25) miles from any other parking facility property, in either case\nowned or managed by the Company or any of the Operating Subsidiaries.\n\n     In addition, the Company acknowledges that the Trustee is a shareholder or\notherwise has an ownership interest in (either directly or indirectly) and is\nan officer and\/or a director of Equity Group Investments, Inc., Equity\nResidential Properties Trust, American Classic Voyages Co., Anixter\nInternational Inc., Antec Corporation, Jacor Communications, Inc., Capsure\nHoldings Corp., Manufactured Home Communities, Inc., Sealy Corporation, Quality\nFood Centers, Inc., Ramco Energy plc, TeleTech Holdings, Inc. and Chart House\nEnterprises, Inc. and that the covenants contained in Section 1 above shall not\nbe deemed to prohibit such companies from engaging in the Business in\ncompetition with the Company and the Operating Subsidiaries, although to the\nbest of the Trustee's knowledge, such aforementioned entities as of the date\nhereof have no intention of doing so.\n\n     3. Term.  This Agreement shall be in effect for such time as the Trustee\nis an officer, director or trustee of the Company or any of the Operating\nSubsidiaries and for a period of one (1) year thereafter (such additional one\nyear period being referred to herein as the 'Tail Period').\n\n     4. Consideration.  In consideration of the Trustee's non-competition\ncommitments provided for herein, the Company agrees to acquire the Management\nBusiness from the Trustee's affiliates.\n\n     5. Adequate Consideration and Ability to Earn Livelihood.  The Trustee\nexpressly acknowledges:  (i) that he will be able to earn a livelihood without\nviolating the covenants set forth in this Agreement, and (ii) that his ability\nto do so was a condition precedent to the Company's entering into this\nAgreement.\n\n     6. Reasonable Limit.  The Company and the Trustee have attempted to limit\nthe Trustee's right to compete only to the extent necessary to protect the\nCompany and the Operating Subsidiaries from unfair competition.  The Trustee\nexpressly acknowledges that the  restrictive covenant contained in Section 1\nabove, along with the exceptions thereto contained in Section 2 above,\nconstitute a reasonable restriction.  If, however, the scope or enforceability\nof the restrictive covenant contained in this Agreement is disputed at any\ntime, a court or other\n\n\n\n\n\n\ntrier of fact may modify and enforce the covenant to the extent that it\nbelieves is reasonable under the circumstances existing at that time.\n\n     7. Breach of Agreement\n\n     (a) A party aggrieved shall notify the other party in writing of any\nconflicts, disputes or claims of breach arising under this Agreement.  Within\nten (10) working days after such notice is sent, the parties shall meet, shall\ndevelop, as fully as possible, the facts relating to the conflict, dispute or\nalleged breach, and shall attempt to resolve the same.  If resolution of the\ndispute is not made to the satisfaction of the aggrieved party within thirty\n(30) days after the notice is sent, the aggrieved party may pursue its legal\nand equitable remedies.\n\n     (b) In the event of breach of this Agreement, the Trustee acknowledges\nthat the remedy at law would be inadequate and that, in addition to monetary\ndamages, the Company and the Operating Subsidiaries shall be entitled, after\ncompliance with the dispute mechanism described in Section 7(a) above, without\nnecessity of posting any bond, to an injunctive order restraining such breach\nimmediately upon the commencement of any suit therefor by the Company or any of\nthe Operating Subsidiaries.\n\n     8. Transferability.  The parties hereto agree that this Agreement shall\ninure to the benefit of the Company, the Operating Subsidiaries, and their\nrespective successors and assigns and shall be fully transferable and\nassignable by the Company and each such Operating Subsidiary.  Upon such\ntransfer or assignment, this Agreement shall remain in full force and effect,\nunder the terms herein, between the trustee and such transferees, assignees or\nsuccessors in interest.  This Agreement shall be binding upon the successors\nand assigns of the Trustee.\n\n     9. Waiver. The waiver by any party to this Agreement of a breach by any\nparty of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach by any other party.  No waiver of any provision\nof this Agreement shall be effective, unless in writing and signed by the party\nwaiving its rights, and then such waiver or consent shall be effective only in\nthe specific instance and for the specific purpose for which given.\n\n     10. Notices.  All notices, requests, demands and other communications\ngiven by any party hereto shall be in writing and shall be deemed to be duly\ngiven if delivered, or if mailed first class, return receipt requested,\naddressed as follows:\n\n\n\n\n\n\n\n\n\nTo the Company:                    To the Trustee:\nEquity Office Properties Trust     Two North Riverside Plaza\nTwo North Riverside Plaza          Suite 600\nSuite 2200                         Chicago, Illinois  60606\nChicago, Illinois  60606\nAttention:  President              with a copy to:\n                                   Equity Group Investments, Inc.\n                                   Donald J. Liebentritt\n                                   General Counsel\n                                   Two North Riverside Plaza\n                                   Suite 600\n                                   Chicago, Illinois  60606\n\n     11. Entire Agreement.  This instrument supersedes all prior understandings\nand agreements of the parties hereto and contains the entire agreement of the\nparties with respect to the subject matter hereof and may not be amended or\nchanged, except by an agreement in writing entered into by the parties hereto.\n\n     12. Applicable Law.  This Agreement shall be governed by, and construed in\naccordance with, the laws of the State of Illinois.\n\n     13. Severability.  If a court of competent jurisdiction adjudicates any\none or more of this Agreement's provisions as invalid, illegal or unenforceable\nin any respect, such provision(s) shall be ineffective only to the extent and\nduration of such invalidity, illegality or unenforceability and such\ninvalidity, illegality or unenforceability shall not affect the remaining\nsubstance of such provision or any of this Agreement's other provisions, and\nthis Agreement shall be construed as if it had never contained such invalid,\nillegal or unenforceable provision.\n\n     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed as of the date first above written.\n\n\nCOMPANY:                                     TRUSTEE:\n\nEQUITY OFFICE PROPERTIES TRUST,\na Maryland real estate investment trust\n\nBy:  \/s\/ Stanley M. Stevens                  \/s\/ Samuel Zell\n     ----------------------------            --------------------\nIts: Executive Vice President                Name:  Samuel Zell\n     ----------------------------\n\n\n\n\n\n\n\n\n\n                               EXHIBIT A\n\n                            RELATED ENTITIES\n\n\n\nEOP Operating Limited Partnership and any subsidiary partnerships, limited\nliability companies, trusts or corporations in which it has an interest\n\nEquity Office Properties Management Corp.\n\nAny corporation, partnership, limited liability company or trust in which the\nCompany has an interest\n\n\n\n\n\n\n\n                               EXHIBIT B\n\n              OTHER OFFICE AND PARKING FACILITY PROPERTIES\n\n\n\n\n                                          \n             OFFICE PROPERTIES               LOCATION\n             ------------------------------  ---------------------\n\n             ZELL\/LURIE\n             6300 West Loop South            Bellaire, Texas\n             Concourse Office Plaza          Skokie, Illinois\n             Eastland Commerce               Columbus, Ohio\n             Jefferson Plaza                 Arlington, Virginia\n             Palo Alto Square                Palo Alto, California\n             Two North Riverside             Chicago, Illinois\n\n             FIRST CAPITAL\n             12356 Featherwood               Houston, Texas\n             1800 Sherman                    Evanston, Illinois\n             Brookwood Metroplex             Birmingham, Alabama\n             Burlington I                    Ann Arbor, Michigan\n             Burlington II                   Ann Arbor, Michigan\n             Burlington III                  Ann Arbor, Michigan\n             Citrus Center                   Orlando, Florida\n             Ellis Building                  Sarasota, Florida\n             Foxhall Square                  Washington, DC\n             Holiday Office Park             Lansing, Michigan\n             Lakeview Office Park            Indianapolis, Indiana\n             Meidinger Tower                 Louisville, Kentucky\n             Park Plaza Professional         Houston, Texas\n             Prentice Plaza                  Englewood, Colorado\n\n             PARKING FACILITIES\n             ------------------\n\n             Washington Madison Wells        Chicago, Illinois\n\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":[9539,9549],"class_list":["post-40126","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__noncompetition"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40126","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=40126"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40126"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40126"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40126"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}