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Exhibit 10.17
AMENDED AND RESTATED
DEFERRED COMPENSATION AGREEMENT
THIS AMENDED AND RESTATED DEFERRED COMPENSATION AGREEMENT ("Restated
Agreement") dated as of January 1, 2002 between EQUITY RESIDENTIAL PROPERTIES
TRUST, a Maryland real estate investment trust ("ERPT"), and GERALD A. SPECTOR,
a resident of Chicago, Illinois ("the Executive").
RECITALS
WHEREAS, ERPT and the Executive entered into a Deferred Compensation
Agreement dated January 18, 1996 ("Agreement") as amended by a First Amendment
dated April 1, 2000; and
WHEREAS, the parties hereto desire to amend the Agreement by entering
into this Restated Agreement for deferred compensation to the Executive for
services by the Executive as Executive Vice President and Chief Operating
Officer of ERPT, and the Executive is willing to enter into this Restated
Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and
considerations contained herein and for other good and valuable consideration,
the payment and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. TERM. For the purposes of this Restated Agreement, the term of
the employment of the Executive shall begin on December 31, 1993 and shall
expire on the Termination Date (as defined below) (the "Term").
2. TERMINATION.
(a) TERMINATION DATE. Unless extended by the mutual
agreement of ERPT and the Executive, the Executive's employment shall
end on the Termination Date. The "Termination Date" shall be the first
to occur of: (i) the date of the Executive's resignation (whether or
not for Good Reason (as defined below)), (ii) the date of the death or
permanent disability or incapacity of the Executive, or (iii) the date
ERPT terminates the Executive's employment (whether or not for Cause
(as defined below)).
(b) PERMANENT DISABILITY OR INCAPACITY. The Executive
shall be considered to be permanently disabled or incapacitated if in
the reasonable commercial judgment of the Board of Trustees of ERPT,
the Executive becomes unable to satisfactorily perform his duties and
responsibilities as Executive Vice President and Chief Operating
Officer of ERPT in the manner currently being performed during the Term
hereof because of a mental or physical disability, or both, that
continues or is reasonably expected to continue for a period of in
excess of one hundred eighty (180) days. In the event the Executive
does not agree with the Board of Trustee's determination of disability
or incapacity, a determination shall be made by a panel of three
doctors. The first shall be chosen by ERPT, the second shall be chosen
by the Executive, and the third shall be chosen by the first two
doctors. Any doctor selected by a party shall not be affiliated,
associated or related to the party selecting the doctor in any manner
whatsoever. The opinion of a majority of the panel of doctors shall be
binding on the parties hereto. Each
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party shall bear the costs of the doctor chosen by them and 1/2 of the
costs of the third doctor.
(c) 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
of Trustees that the Executive: (i) intentionally and continually
failed substantially to perform his reasonably assigned duties with the
Company (other than a failure resulting from the Executive's incapacity
due to physical or mental illness or from the Executive's assignment of
duties that would constitute "Good Reason" as hereinafter defined)
which failure continued for a period of at least thirty (30) days after
a written notice of demand for substantial performance has been
delivered to the Executive specifying the manner in which the Executive
has failed substantially to perform or (ii) intentionally engaged in
conduct which is demonstrably and materially injurious to the Company;
PROVIDED, HOWEVER, that no termination of the Executive's employment
shall be for Cause as set forth in clause (ii) above until (x) there
shall have been delivered to the Executive a copy of a written notice
setting forth that the Executive was guilty of the conduct set forth in
clause (ii) and specifying the particulars thereof in detail and (y)
the Executive shall have been provided an opportunity to be heard in
person by the Board (with the assistance of the Executive's counsel if
the Executive so desires). Neither an act nor a failure to act, on the
Executive's part shall be considered "intentional" unless the Executive
has acted or failed to act with a lack of good faith and with a lack of
reasonable belief that the Executive's action or failure to act was in
the best interest of the Company.
(d) GOOD REASON. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any of the events or conditions
described in subsections (i) through (vii) hereof:
(i) a change in the Executive's status, position
or responsibilities (including reporting responsibilities)
which, in the Executive's reasonable judgment, represents a
substantial adverse change from his status, position or
responsibilities as in effect at any time within 180 days
preceding the date of a termination of employment; 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 termination of employment; 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 termination of employment, 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 thirty (30) days of
written notice thereof;
(iii) the Company's requiring the Executive to be
based at any place outside a 30-mile radius from the
Executive's principal location of business prior to the
termination of employment, except for reasonably required
travel on the
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Company's business which is not materially greater than such
travel requirements prior to the termination of employment;
(iv) 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;
(v) any material breach by the Company of any
provision of this Agreement;
(vi) any purported termination of the Executive's
employment for Cause by the Company which does not comply with
the terms of Section 2(c); or
(vii) in the event of the Executive's termination
of employment following a "Change in Control," the occurrence
of a "Good Reason" (as such terms are defined in the Change in
Control Agreement previously entered into by ERPT and the
Executive).
3. DEFERRED COMPENSATION.
(a) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD
REASON; RESIGNATION SUBSEQUENT TO 12/31/08. In the event that (i) the
Executive's employment is terminated by ERPT without Cause; (ii) the
Executive resigns for Good Reason; or (iii) the Executive resigns
subsequent to December 31, 2008 (whether or not for Good Reason); the
Executive shall be entitled to annual deferred compensation for a ten
(10) year period commencing on the Termination Date in an annual amount
equal to the product of six and 67/100 percentage points (0.0667)
MULTIPLIED BY a whole number equal to the lesser of: (i) fifteen (15);
or (ii) the whole number equal to the number of years (including as a
whole year any portion of a year in excess of nine (9) months) that the
Executive was employed by ERPT since December 31, 1993 (which product
shall in no event exceed 100%); MULTIPLIED BY the Annual Base
Compensation (as defined below) for the calendar year in which the
Termination Date occurs. Such annual compensation shall be payable in
equal bi-monthly installments. In the event of the Executive's death
during the ten (10) year period in which he is paid annual deferred
compensation, such annual deferred compensation shall then be paid to
the estate or any other designee of the Executive.
(b) DEATH, PERMANENT DISABILITY OR INCAPACITY. In the
event that the Executive's employment is terminated as a result of his
death, permanent disability or incapacity, the Executive (or the estate
or any other designee of the Executive, in the case of death) shall be
entitled to annual deferred compensation for a ten (10) year period
commencing on the Termination Date in an annual amount equal to the
product of ten percentage points (0.10) MULTIPLIED BY a whole number
equal to the lesser of: (i) ten (10); or (ii) the whole number equal to
the number of years (including as a whole year any portion of a year in
excess of nine (9) months) that the Executive was employed by ERPT
since December 31, 1993 (which product shall in no event exceed 100%)
MULTIPLIED BY the Annual Base Compensation (as defined below). Such
annual compensation shall be payable in equal bi-monthly installments.
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(c) TERMINATION WITH CAUSE OR RESIGNATION WITHOUT GOOD
REASON. In the event that (i) the Executive's employment hereunder is
terminated with Cause by ERPT, or (ii) the Executive resigns without
Good Reason on or before December 31, 2008, the Executive shall not be
entitled to receive any deferred compensation hereunder.
(d) ANNUAL BASE COMPENSATION. For purposes of this
Restated Agreement, "Annual Base Compensation" shall mean an amount
equal to Five Hundred Fifty Thousand Dollars ($550,000.00) for calendar
year 2002, which sum shall be increased as of January 1, 2003 and as of
the first day of January of each year thereafter throughout the Term to
an amount equal to the Annual Base Compensation in effect for the
immediately preceding calendar year increased by a percentage equal to
the percentage increase in the CPI (as defined below) during the
immediately preceding calendar year over the prior calendar year.
(e) CPI. The term "CPI" shall mean the Revised Consumer
Price Index for All Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of Labor, for United States
City Average, All Items (1982-84 = 100). If the manner in which the CPI
is calculated shall be substantially revised ERPT and the Executive
shall select a means to adjust such revised Index, which would produce
results equivalent, as practicable, to those, which would have been
obtained if the CPI has not been so revised. If the 1982-84 average
shall no longer be used as an index of 100, such change shall
constitute a substantial revision. If the CPI shall become unavailable
to the public because publication is discontinued, or otherwise, ERPT
and the Executive shall select a comparable substitute index based upon
changes in the cost of living or purchasing power of the consumer
dollar published by any other governmental agency, or, if no such index
shall then be available, a comparable index published by a major bank
or other financial institution or by a university or a recognized
financial publication. In the event that the U.S. Department of Labor,
Bureau of Labor Statistics, changes the publication frequency of the
CPI so that a CPI is not available to make an adjustment for the period
in question, the adjustment shall be based on the percentage increase
in the CPI for the twelve (12) month period beginning with the closest
month preceding the period in question for which a CPI is available.
4. ARBITRATION. Except as otherwise specifically provided herein,
any controversy or claim arising out of, or relating to this Restated Agreement,
or the breach thereof, shall be settled by arbitration in Chicago, Illinois in
accordance with the rules of the American Arbitration Association, and judgment
upon any award so rendered may be entered in any court having jurisdiction
thereof.
5. NOTICES. Any notice or other communication required or
permitted to be transmitted under this Restated Agreement shall be in writing,
and personally delivered or mailed, return receipt requested, postage prepaid,
addressed to the parties hereto at their addresses following their signatures
below, or at such other addresses as may be hereafter designated by a party by
notice delivered in accordance herewith. Any notice delivered personally shall
be effective on the date of delivery and any notice mailed, as aforesaid, shall
be effective on the second day following posting.
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6. WAIVER OF BREACH. The waiver by one party of a breach of any
provision of this Restated Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the one party.
7. ASSIGNMENT. The rights and obligations of ERPT and Executive
under this Restated Agreement shall inure to the benefit of, and shall be
binding upon, ERPT and its successors and assigns and Executive and his heirs
and personal representatives.
8. ENTIRE AGREEMENT. This instrument contains the entire
agreement between the parties. It may not be changed orally but only by
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought. This Restated Agreement supersedes
the Agreement and any other written or oral agreement between ERPT and the
Executive concerning the subject matter of this Restated Agreement.
9. GOVERNING LAW; SEVERABILITY. This Restated Agreement shall be
construed and enforced, and all questions concerning compliance by any person
with its terms shall be determined under the laws of the State of Illinois. All
provisions of this Restated Agreement are severable and this Restated Agreement
shall be interpreted and enforced as if all completely invalid or unenforceable
provisions were not contained herein, and partially valid and enforceable
provisions shall be enforced to the extent valid and enforceable.
IN WITNESS WHEREOF, the parties have executed this Restated Agreement
as of the day and year first above written.
ERPT:
EQUITY RESIDENTIAL PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ Douglas Crocker II
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Douglas Crocker II, President & CEO
Address:
Two North Riverside Plaza
Chicago, Illinois 60606
THE EXECUTIVE
/s/ Gerald A. Spector
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GERALD A. SPECTOR
Address:
Two North Riverside Plaza
Chicago, Illinois 60606
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