EX-10.4 Severance Agreement - David A. Helfand

EXHIBIT 10.4

April 28, 2003

VIA HAND DELIVERY
PERSONAL AND CONFIDENTIAL

Mr. David Helfand
1200 North Lake Shore Drive, #502
Chicago, IL 60610

Dear David

     This letter agreement (“Letter Agreement”) confirms our recent discussions regarding your employment and separation of employment from EOP Operating Limited Partnership and Equity Office Properties Trust (collectively the “Company”). This Letter Agreement sets out the arrangements we discussed.

1. Employment and Separation from Employment

     It is understood that during the period from the date of this Letter Agreement through April 30, 2003 (the “active employment period”) you shall continue to carry out all of your current duties and responsibilities as well as such transition related responsibilities as may be assigned to you. Your current base salary, employee benefits and executive perquisites shall remain unchanged during the active employment period.

     Provided that you remain in the employ of the Company through the active employment period and reasonably carry out your duties and responsibilities, your separation from employment with the Company, and your resignation as an officer of the Company and its affiliated entities shall be effective April 30, 2003 (“Separation Date”).

     As of your Separation Date, except as otherwise provided in this Letter Agreement, the Company’s established plans and procedures shall govern any benefit continuation or conversion rights. Enclosed as Attachment 1, and incorporated herein, is an Employee Benefits Summary that summarizes your benefits upon separation assuming execution of this Letter Agreement and Waiver and Release Agreement (“Release”) as provided in Paragraph 2 below.

2. Separation Pay and Separation Benefits

     On the condition that (i) on or within twenty-one (21) days after your receipt of this Letter Agreement you sign, date and return to Stanley M. Stevens in our office two (2) copies of this Letter Agreement, (ii) on or within three (3) days after your April 30, 2003 Separation Date you sign, date and return to Stanley M. Stevens the Release attached hereto as Attachment 2, and incorporated herein (the date of such timely

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April 28, 2003
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delivery, if it occurs, is herein referred to as the “Delivery Date”), and (iii) you comply with your obligations set forth in this Letter Agreement and Release and do not revoke the Release during the revocation period described in Paragraph 9 of the Release, in addition to whatever unpaid salary, paid time off and grandfathered vacation time that you are due for active service through April 30, 2003, the Company will provide you the following separation pay and separation benefits:

Mr. David Helfand
April 28, 2003
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     You acknowledge that the foregoing separation pay and separation benefits are extra pay and benefits to which you are not entitled under the Company’s established policies, plans and procedures absent your signing this Letter Agreement and the Release. You further acknowledge and agree that the Company’s offer and payment of such separation pay and separation benefits to you and your signing of this Letter Agreement and the Release does not in any way indicate that you have any viable claims against the Company or its affiliates or that the Company or its affiliates has or admits any liability to you whatsoever.

     The Company encourages and advises you to consult with your attorney at your own expense prior to signing a copy of this Letter Agreement and the Release. The terms of this Letter Agreement permit you at least twenty-one (21) calendar days from the receipt of this Letter Agreement and the Release, to consider signing the Letter Agreement and Release and seven (7) calendar days after such signing to revoke the Release.

     The Company shall deduct from the separation pay, separation benefits and other monies that this Letter Agreement, the Release or the Company’s benefit plans provide, all legally required taxes and any monies owed the Company. In the event that you die after the Effective Date but before receiving full payment of separation pay

Mr. David Helfand
April 28, 2003
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under this Paragraph 2, the Company shall pay the balance of the separation pay to your estate. Your receipt of separation pay and separation benefits payments under this Letter Agreement will not create an employment or agency relationship with the Company.

3. Company Property

     By or before your Separation Date, you agree to return to the Company all files, records, documents, reports, and other business equipment, keys, credit cards, and other physical or Company personal property you possess or control and you further agree that you will not keep, transfer or use any copies or excerpts of the foregoing items. Notwithstanding the preceding sentence, you will be allowed to retain for your personal use and ownership your Company-provided laptop computer and personal data assistant (PDA) device, provided all Company proprietary and confidential information, as described in Paragraph 4 below, has been removed from such equipment prior to its final release to you.

4. Confidentiality/Nonsolicitation

     You agree from and after today to keep strictly confidential the existence and terms of this Letter Agreement and you further agree that you will not disclose them to any person or entity, other than to your immediate family, your attorney, and your financial advisor, or except as the law may require. The Company will keep strictly confidential the existence and terms of the Letter Agreement except to its employees on a “need-to-know” basis and to its attorneys, accountants and except as the law may require.

     You further agree that from and after today you shall not take any actions or make any statements to the public, future employers, current, former or future Company employees, or any other third party whatsoever that disparage or reflect negatively on the Company and/or its affiliates, its and/or their officers, trustees, directors, or employees. This will not preclude you from providing truthful statements if called to testify under oath in any legal proceeding.

     In the course of your employment with the Company, you received proprietary and confidential information. Proprietary and confidential information includes the Company’s unique plans and strategies, including its business strategies; potential acquisition, merger or investment candidates; operating procedures and programs; Equity Office manuals and training materials; lists of prospective tenants or prospective sellers or purchasers of real estate; lists of or information regarding customers, brokers or prospects; offers to sell, exchange, purchase, rent or lease real estate; any appraisal or other technical data regarding real estate; lists of real estate for purchase, sale, rent or lease; and “material information” as defined by securities laws and other information that the Illinois Trade Secrets Act protects. These restrictions apply whether the information is written, electronic, or simply personal knowledge. Thus, while you may

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April 28, 2003
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engage in activities for other businesses, except as limited herein, including Company competitors, and may make use of general knowledge you have acquired in running a similar business, you must be careful not to use the Company’s proprietary and confidential information. For this purpose, proprietary and confidential information does not include information which is or becomes already known to the person(s) to whom you would discuss it through no fault of your own or to information which is in the public domain. You agree that you will hold and maintain all such information in confidence, and you will not use it in any manner whatsoever or disclose any such information to any third party except (a) with the prior written consent of the Company’s Chief Legal Counsel, or (b) as the law may require provided you furnish written notice to the Company’s Chief Legal Counsel prior to disclosing the information. This provision also applies to Company proprietary and confidential information furnished to you during the Consulting Period described in Paragraph 6 below.

     You also agree that during your employment and for a one (1) year period following your Separation Date, without the prior express written consent of the Company’s Chief Legal Counsel, (i) you will not directly or indirectly hire away nor participate nor assist in the hiring away of any employee of the Company and (ii) you will not solicit nor encourage any Company employee to leave the employ of the Company.

     You acknowledge that the provisions of this Paragraph 4 are reasonable and not unduly restrictive of your individual rights and you warrant that as of the date you sign this Letter Agreement you have not breached any of the provisions of Paragraph 4. You further acknowledge that in the event that you breach any of the provisions of Paragraph 4, such breach will result in immediate and irreparable harm to the business and goodwill of the Company and that damages, if any, and remedies at law for such breach would be inadequate. The Company shall, therefore, be entitled to apply for and receive from any court of competent jurisdiction an injunction to restrain any violation of Paragraph 4 by you, an award of attorneys’ fees and costs associated with such action, and such further relief as the court may deem just and proper.

5. Dispute Resolution

     Except with respect to an application by the Company or its affiliates to a court of competent jurisdiction to enforce Paragraph 4 above, to the extent permitted by law, the parties agree promptly, and in any event within 90 days unless otherwise mutually agreed, to resolve any other dispute arising out of this Letter Agreement or the Release, through binding confidential arbitration conducted in Chicago, Illinois in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (the “AAA”); provided, one neutral arbitrator shall be chosen in accordance with AAA rules to arbitrate any such dispute. The parties irrevocably consent to such jurisdiction for purposes of said arbitration, and judgment may be entered thereon in any state or federal court in the same manner as if the parties were residents of the state or federal district in which said judgment is sought to be entered.

Mr. David Helfand
April 28, 2003
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The arbitrator shall charge the reasonable attorneys’ fees, expenses and costs of the substantially prevailing party to the other party, but in an amount not to exceed one half of the value of the award if there is one.

6. Cooperation

     You agree during your employment and from and after your Separation Date to make yourself available to the Company to provide reasonable cooperation and assistance to the Company with respect to areas and matters in which you were involved during your employment, including any threatened or actual litigation concerning the Company (including, without limitation, attendance at out of town proceedings for which the Company may require travel), and to provide to the Company, if requested, information and counsel relating to the Company business matters. Furthermore, provided that during the six (6) month period following your Separation Date (the “Consulting Period”), you are available to provide consulting assistance to the Company at such times and such places as the Company reasonably requests with respect to Company business matters specified by the Company, the Company shall pay you a lump sum cash payment in the gross amount of One Hundred Forty Three Thousand Seven Hundred and Fifty Dollars ($143,750.00) not later than fifteen (15) days following the six (6) month anniversary of your Separation Date. The Company agrees to reimburse you for the actual expenses you incur (including reasonable travel expenses) as a result of your complying with this provision provided you submit proper documentation of the expenses you incur as required by the Company.

7. General Matters

     You acknowledge and agree that in signing this Letter Agreement and the Release you do not rely and have not relied on any representation or statement by the Company or by its trustees, employees, agents, representatives, or attorneys with regard to the subject matter, basis or effect of this Letter Agreement and the Release.

     This Letter Agreement and the Release shall be deemed a contract made under, and for all purposes to be governed by and construed in accordance with, the laws of the State of Illinois, without reference to principles of conflicts of laws, except to the extent superseded by applicable federal law. The captions are utilized for convenience only, and do not operate to explain or limit the provisions of this Letter Agreement.

     You acknowledge and agree that if any provision of this Letter Agreement or the Release is found, held or deemed by the arbitration and/or a court of competent jurisdiction to be void, unlawful or unenforceable under any applicable statute or controlling law, the remainder of this Letter Agreement and the Release shall continue in full force and effect.

Mr. David Helfand
April 28, 2003
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     This Letter Agreement will be binding upon and inure to the benefit of you and your heirs, executors, successors and assigns and the Company, its affiliates, subsidiaries, successors and assigns.

     Any notice to be given by one party hereunder to another shall be in writing and shall be delivered personally, by recognized national overnight courier service, or United States registered or certified mail, postage prepaid, return receipt requested, and addressed to:

     The language of all parts of this Letter Agreement and the Release shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either party. The provisions of this Letter Agreement and the Release shall survive any termination of this Letter Agreement and the Release when necessary to effect the intent and terms of this Letter Agreement and the Release expressed herein.

     This Letter Agreement and the Release contain the entire agreement between you and the Company with respect to the matter of your employment and separation from employment. No modification of any provision of this Letter Agreement or the Release shall be effective unless made in writing and signed by you and me or the Company’s Chief Legal Counsel. You may not assign this Letter Agreement and Release and the Letter Agreement and Release each may be signed in multiple counterparts, each of which shall be deemed an original for all purposes.

     Should you require further clarification of any aspect of the above arrangements, or wish to discuss their implementation, please contact Stanley M. Stevens or me.

     Please indicate your agreement and acceptance of these provisions by signing and dating the enclosed two (2) copies of this Letter Agreement and, thereafter, the Release and returning them to Stanley M. Stevens at the above address. The Company will return to you a fully executed Letter Agreement and, thereafter, the Release for your records. Following your acceptance, the arrangements will be implemented and administered as described herein.

     So that there is no misunderstanding, please understand that if for any reason Stanley M. Stevens does not receive the signed copies of this Letter Agreement and Release from you on a timely basis as described in Paragraph 2 above, unless

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April 28, 2003
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otherwise agreed in writing by Mr. Stevens, or if you exercise your right to revoke the Release within seven (7) days after signing as provided therein, the proposed separation pay and separation benefits described in this Letter Agreement will be deemed to be withdrawn.

AGREED AND ACCEPTED:

/s/ David Helfand

April 28, 2003

cc: Stanley M. Stevens

ATTACHMENT 1

COMPANY EMPLOYEE BENEFITS SUMMARY

     The following is a summary of your benefits. Please note that in the event of any difference between this summary and the actual benefit plan document or policies, the actual benefit plan documents or policies shall control.

     All benefits end on your Separation Date. However, you have the opportunity to continue some benefits as described below. If you have any questions, please contact Kim Johnson in human resources at (312)  ###-###-####.

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ATTACHMENT 2

EQUITY OFFICE PROPERTIES TRUST/
EOP OPERATING LIMITED PARTNERSHIP
WAIVER AND RELEASE AGREEMENT

     1.     In consideration for my election to receive the separation pay and separation benefits described in the Letter Agreement dated April 17, 2003 (“Letter Agreement”), I, DAVID HELFAND, on behalf of myself and my heirs, executors, administrators, attorneys and assigns, hereby waive, release and forever discharge EQUITY OFFICE PROPERTIES TRUST (“EOPT”) together with EOPT’s trustees, subsidiaries, divisions and affiliates (including, without limitation, EOP Operating Limited Partnership) and Equity Office Management, L.L.C. which are, together with, EOPT collectively hereinafter referred to as the “Company”), whether direct or indirect, its and their joint ventures and joint venturers (including each of their respective directors, trustees, officers, employees, shareholders, partners and agents, past, present, and future), and each of its and their respective successors and assigns (hereinafter collectively referred to as “Releasees”), from any and all known or unknown actions, causes of action, claims or liabilities of any kind which have or could be asserted against the Releasees arising out of or related to my employment with and/or separation from employment and all other positions with the Company and/or any of the other Releasees and/or any other occurrence up to and including the date of this Waiver and Release Agreement (“Release”), including but not limited to:

but excluding any claims to enforce the Letter Agreement, the filing of an administrative charge of discrimination, any claims which I may make under state workers’ compensation or unemployment laws, claims covered by any Indemnification Agreement from EOPT or EOP Operating Limited Partnership in my favor (including, without limitation, claims arising under or as a result of Article XI of the Second Amended and Restated Bylaws of Equity Office Properties Trust) and/or any claims which by law I cannot waive.

     2.     I also agree never to sue any of the Releasees or become party to a lawsuit on the basis of any claim of any type whatsoever arising out of or related to the claims released above, other than a lawsuit to challenge this Release under the ADEA.

     3.     I further acknowledge and agree that if I breach the provisions of paragraph (2) above, then, to the fullest extent permitted by law, (a) the Company shall be entitled to apply for and receive an injunction to restrain any violation of paragraph (2) above, (b) the Company shall not be obligated to continue payment of the Letter Agreement separation pay and separation benefits to me, (c) I shall be obligated to pay to the Company its costs and expenses in enforcing this Release and defending against such lawsuit (including court costs, expenses and reasonable legal fees), and (d) as an alternative to (c), at the Company’s option, I shall be obligated upon demand to repay to the Company all but $25,000 of the Letter Agreement separation pay and separation benefits paid to me. I further agree that the foregoing covenants in this paragraph (3) shall not affect the validity of this Release and shall not be deemed to be a penalty nor a forfeiture.

     4.     To the extent permitted by law, I further waive my right to any monetary recovery should any federal, state, or local administrative agency or any other person or entity pursue any claims on my behalf arising out of or related to any of the claims released above.

     5.     To the extent permitted by law, I further waive, release, and discharge Releasees from any reinstatement rights which I have or could have and I acknowledge that I have not suffered any on the job injury for which I have not already filed a claim.

     6.     I further agree that if I breach the Confidentiality/Nonsolicitation provisions of the Letter Agreement, then, to the fullest extent permitted by law, (a) the Company shall be entitled to apply for and receive an injunction to restrain such breach, (b) the Company shall not be obligated to continue payment of the Letter Agreement separation pay and separation benefits to me, and (c) I shall be obligated to pay to the Company its costs and expenses in enforcing the Confidentiality/Nonsolicitation provisions of the Letter Agreement (including court costs, expenses and reasonable legal fees).

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     7.     I also understand that the Letter Agreement separation pay and separation benefits, which I will receive in exchange for signing the Letter Agreement and this Release, are in addition to anything of value to which I already am entitled.

     8.     I FURTHER UNDERSTAND THAT THIS RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS TO DATE.

     9.     I acknowledge that I have had at least twenty-one (21) calendar days after the receipt of this Release to consider signing this Release. In addition, I have seven (7) calendar days after signing this Release to revoke it, in which case this Release and the Letter Agreement will be null and void. Any such revocation must be in writing and be submitted to Stanley M. Stevens, the Company’s Chief Legal Counsel, within such seven (7) day period. I understand that if I sign this Release and do not revoke it within seven (7) calendar days after signing, this Release and the Letter Agreement will become fully effective and enforceable.

     10.     I further acknowledge and agree that I have carefully read and fully understand all of the provisions of this Release and that I have been advised to obtain or have obtained representation by counsel in connection with my execution of the Letter Agreement and this Release and that my execution of the Letter Agreement is voluntary and that I have voluntarily executed this Release by signing below.

     11.     I acknowledge and agree that if any provision of this Release is found, held or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable under any applicable statute or controlling law, the remainder of this Release shall continue in full force and effect.

     12.     This Release is deemed made and entered into in the State of Illinois without giving effect to is choice of laws provisions, and in all respects shall be interpreted, enforced and governed under applicable federal law and in the event reference shall be made to State law, the internal laws of the State of Illinois.

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