EXHIBIT 99.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Contract" ) is made and entered into as of June
19, 2003 by and between SUMMIT PROPERTIES INC. and SUMMIT PROPERTIES
PARTNERSHIP, L.P. (collectively, the "Company") and Xxxxxxx X. Xxxxx (the
"Consultant").
Statement of Purpose
WHEREAS, Company is a full service real estate company engaged in the
development, construction, management, acquisition and disposition of
multifamily apartment communities;
WHEREAS, Consultant desires to provide certain services, which are
described below, to the Company with respect to its acquisition, development,
construction, operation, management or disposition of multi-family residential
developments (collectively, the "Properties"); and
WHEREAS, Company desires to retain Consultant to provide the services
which are described below, and Company and Consultant desire to set forth their
agreement.
NOW, THEREFORE, in consideration of the aforesaid Statement of Purpose,
the terms and provisions of this Contract and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto mutually consent, covenant, represent, warrant and agree as
follows:
1. Services. The Company hereby engages Consultant, on behalf of the
Properties' respective owners, to provide the services of the Consultant
relative to the Properties as described in Exhibit A attached hereto (the
"Services") and Consultant accepts such engagement and agrees to perform such
services for the Company.
2. Independent Consultant Provisions. The parties acknowledge and agree
that the Consultant is acting hereunder as an independent consultant and not as
an employee of Company nor of the Properties' respective owners, and the terms
and conditions of this Contract shall be interpreted and construed accordingly.
In no event shall this Contract be construed as establishing a partnership or
joint venture or similar relationship between the parties hereto, and nothing
herein contained shall be construed to authorize either party to act as agent
for the other. Consultant shall be liable for his own debts, obligations, acts
and omissions, including the payment of all self-employment, Social Security and
other taxes and benefits applicable to him. As an independent consultant,
Consultant is responsible for filing such tax returns and paying such
self-employment taxes as may be required by law or regulations. Consultant shall
not be subject to any Company policies solely applicable to Company's employees,
and shall not be eligible for any employee benefit plan offered by Company. In
the event that this independent consultant relationship is determined by tax
authorities to constitute an employment relationship, Consultant hereby waives,
for the period prior to the date such determination becomes final, any and all
claims to coverage under Company pension, profit-sharing, health, dental,
welfare or similar type plans which are generally limited to Company employees,
unless otherwise agreed by Company in writing. Consultant shall not have the
authority to hire, terminate or supervise personnel on behalf of the Company.
3. Term. The term of this Agreement shall commence as of May 23, 2003
and shall be in effect until May 22, 2004 (the "Expiration Date").
4. Compensation; Reimbursement. Each month during the term of this
Agreement, the Company shall pay to Consultant a draw against future commissions
in the amount of $18,000 per month (or pro-rata payment for any partial month)
payable in arrears. In addition, the Company shall promptly pay or reimburse
Consultant for any and all reasonable out-of-pocket expenses incurred by
Consultant in carrying out Services under this Agreement. This draw shall be
non-refundable. Any commissions or amounts payable to Consultant as a result of
property dispositions shall be credited against such draw at time of closing.
The parties intend that such commissions shall "zero out" the advanced draw
amounts. In no circumstances shall Consultant be entitled to net payments more
or less than the monthly draw amounts. Notwithstanding anything in this
Agreement to the contrary, the Company's obligation to make payments to
Consultant hereunder shall not be subject to set-off or recoupment against or
for any claim or action the Company or any of its affiliates may have arising
under any agreement with or obligation of Consultant or otherwise. The above
amounts shall be payable to Consultant as set forth above in the event of death
or disability that renders him unable to perform the Services.
5. Representations of Consultant. Consultant represents and warrants to
the Company that Consultant has the capacity and power to enter into this
Contract and to perform Consultant's obligations hereunder. Further, Consultant
represents and warrants to the Company that Consultant is not subject to any
other restraints of any kind which would impair or encumber Consultant's ability
to perform the duties and obligations required of Consultant hereunder.
Consultant further agrees that he shall not represent himself as an employee or
principal of Company, and that his authority to act or to represent himself as
an agent of Company during the terms of this Agreement is strictly limited to
those activities set forth in Exhibit A.
6. Efforts. During the term of this Contract, Consultant agrees to at
all times provide the Services using good business ethics and in a professional
manner.
7. Indemnity. Consultant hereby agrees to indemnify and hold harmless
Company from and against any and all demands, claims, actions, suits,
liabilities, damages, losses, costs and expenses (including reasonable
attorneys' fees and expenses) incurred or suffered by Company by reason of the
making by any person of any claim, demand, action, proceeding or suit against
the Consultant or Company resulting from, arising out of, with respect to, in
connection with, or in any manner related to Company's relationship with
Consultant or Consultant's performance of the Services hereunder if, such
demands, claims, actions, suits, liabilities, damages, losses, costs and
expenses (including reasonable attorneys' fees and expenses) incurred or
suffered by Company are a direct result of Consultant's willful misconduct,
gross negligence, or violation of any federal, state or local criminal statute
or ordinance.
8. Confidentiality. During the term of this Contract and afterwards,
Consultant shall not disclose the confidential information of Company, relating
to the Services or otherwise, to any entity or individual without Company's
written consent, unless required by law or in connection with providing Services
hereunder. Confidential information shall be deemed any business information of
Company not generally available to the public. This paragraph is not intended to
supercede or cancel any confidentiality provisions or restrictive covenants
imposed on Consultant as a result of his former employment with Company.
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9. Assignment. Consultant may not assign this Contract or any of
Consultant's rights, benefits, obligations or duties hereunder to any other
person, firm, corporation or other entity, this Contract being personal in
nature as to Consultant. The Company may assign this Contract without
Consultant's consent to any entity affiliated with the Company.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
(i) personally delivered, (ii) delivered to the following address by a private
delivery service such as Federal Express or (iii) placed in the United States
mail by certified mail, return receipt requested, postage prepaid, addressed to
the parties hereto as follows (provided that notice of change of address shall
be deemed given only when received):
As to the Company: Summit Properties Inc
Summit Properties Partnership, L.P.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
As to Consultant: Xxxxxxx X. Xxxxx
0000 Xxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
The address of both the Company and Consultant may be changed from time to time
by either party serving notice upon the other.
11. Non-Waiver. No waiver by either party of any breach by the other
party of any provision hereof shall be deemed to be a waiver of any later or
other breach thereof or as a waiver of any such or other provision of this
Contract.
12. Governing Law. This Contract shall be deemed to have been made and
entered into in the State of North Carolina, and the construction, validity and
enforceability of this Contract shall be governed by the laws of such State.
13. Entire Contract. This Contract constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
cancels all prior or contemporaneous oral or written agreements and
understandings between them with respect to the subject matter hereof except for
the Separation Agreement between Consultant, Summit Properties, Inc. and Summit
Management Company dated June 19, 2003, the terms of which shall survive this
Contract. This Contract may not be changed or modified orally but only by an
instrument in writing signed by the parties hereto, which instrument states that
it is an amendment to this Contract.
14. Severability. Except as equity may require, should any provision of
this Contract or any part thereof be held invalid or unenforceable, the same
shall not affect or impair any other provision of this Contract or any part
thereof, and the invalidity or unenforceability of any provision of this
Contract shall not have any effect on or impair the obligation of the Company or
Consultant.
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15. Execution. This Contract may be executed in duplicate counterparts,
each of which shall be deemed an original hereof.
IN WITNESS WHEREOF, the Company has caused this Contract to be signed
by its duly authorized officers and its corporate seal to be hereunto affixed,
and Consultant has hereunto set Consultant's hand and seal, all as of the day
and year noted above.
Company:
SUMMIT PROPERTIES INC
By: /S/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Executive V.P., Summit Properties, Inc.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.
By: /S/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Executive V.P., Summit Properties, Inc.
CONSULTANT:
/S/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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EXHIBIT A
Consultant shall advise and consult with the Company relative to certain areas
of Company business. Consultant shall be available, during regular Company
working hours, upon reasonable notice, to, participate, by telephone, conference
or other events relating to these activities. Nothing in the Consulting
Agreement or this Exhibit A shall prevent or restrict Consultant from providing
consulting or other services to any other person or entity or from engaging in
other business activities related or unrelated to the services provided
hereunder. The services requested of Consultant by Company shall not be
scheduled or require efforts by Consultant that materially interfere with his
job search efforts or with any future subsequent employment.
In the event that Consultant is asked to travel by Company (defined as beyond
reasonable commuting distance from his then residence). Company shall provide
reasonable notice, and such travel obligation shall be subject to Consultant's
reasonable scheduling needs.
Consultant shall use reasonable best efforts to provide advice and consultation
based on Consultant's historical and current knowledge of such activities.
Consultant shall interface primarily with one individual representative of the
Company, which individual shall be Xxxxxxx X. Xxxxxxx. Consultant shall maintain
a non-disparaging and productive attitude with all Company employees during the
term of the Consulting Agreement.
The individual properties comprising the Texas Properties upon which Sales
Consultant shall render advice and consultation and the commissions associated
with each are as follows:
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PROPERTY ESTIMATED SALE DATE ESTIMATED SALE PROCEEDS COMMISSION
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Summit Camino Real August $42,550,000 $ 48,000
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Summit Buena Vista October 35,730,000 40,000
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Summit Arboretum December 31,800,000 36,000
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Summit San Raphael December 18,350,000 20,000
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Summit Belcourt December 17,384,000 20,000
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Summit Las Palmas December 29,870,000 34,000
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$ 198,000
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