Exhibit 99.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of September 18,
2003, is by and among Xxxxx & Steers Capital Management, Inc. ("Xxxxx &
Steers"), the client accounts of Xxxxx & Steers, as set forth on Schedule A
(each a "Purchaser" and collectively, the "Purchasers"), and Summit Properties
Inc., a Maryland corporation (the "Seller").
WHEREAS, the Purchasers desire to purchase from Seller, and Seller
desires to issue and sell to the Purchasers, 2,300,000 shares of common stock,
par value $.01 per share (the "Shares");
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
Purchasers hereby agree to purchase from Seller, and Seller agrees to
issue and sell to the Purchasers, the Shares at a price per share of
$21.81 for an aggregate purchase price of $50,163,000 (the "Purchase
Price").
2. Representations and Warranties of Purchaser. Each Purchaser represents
and warrants that:
(a) Due Authorization. Such Purchaser is duly authorized to
purchase the Shares. This Agreement has been duly authorized,
executed and delivered by such Purchaser and constitutes a
legal, valid and binding agreement of such Purchaser, or of
Xxxxx & Steers on behalf of such Purchaser, enforceable
against such Purchaser in accordance with its terms except as
may be limited by (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights or remedies of creditors or (ii) the
effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and discretion
of the court before which any proceeding therefor may be
brought.
(b) Prospectus and Prospectus Supplement. Such Purchaser has
received a copy of Seller's Prospectus dated August 6, 1999
(together with the Prospectus Supplement to be delivered to
Seller prior to the Closing (as defined in Paragraph 5 of this
Agreement), the "Prospectus").
(c) Not a Party in Interest; Disqualified Person. With respect to
Seller, such Purchaser is not a "party in interest" as such
phrase is used in the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or a "disqualified person" as
such phrase is used in the Internal Revenue Code of 1986, as
amended ("Code").
(d) Not a Prohibited Transaction. The purchase of the Shares from
Seller will not give rise to a nonexempt "prohibited
transaction" under ERISA or the Code.
3. Representations and Warranties of Seller. Seller represents and
warrants that:
(a) Due Authorization. This Agreement has been duly authorized,
executed and delivered by Seller and constitutes a legal,
valid and binding agreement of Seller, enforceable against
Seller in accordance with its terms except as may be limited
by (i) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the
rights or remedies of creditors or (ii) the effect of general
principles of
equity, whether enforcement is considered in a proceeding in
equity or at law and the discretion of the court before which
any proceeding therefor may be brought.
(b) Organization and Authority. Seller has been duly organized and
is validly existing in good standing under the laws of
Maryland, with full power and authority to own or lease and
occupy its properties and conduct its business as described in
the Prospectus.
(c) Issuance of the Shares. The Shares have been duly and validly
authorized and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable and will be
listed, subject to notice of issuance, on the New York Stock
Exchange effective as of the Closing (as defined below).
(d) Absence of Conflicts. The execution, delivery and performance
of this Agreement and the consummation of transactions
contemplated herein do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any
property or assets of the Seller.
4. Representations and Warranties of Xxxxx & Steers. Xxxxx & Steers hereby
represents and warrants that:
(a) Due Authorization. Xxxxx & Steers has been duly authorized to
act as investment adviser on behalf of each Purchaser, and
that it has the power and authority to enter into this
Agreement on behalf of each Purchaser.
(b) Ownership Limit. To the best knowledge of Xxxxx & Steers, the
purchase of the Shares by the Purchasers will not cause any
person to exceed the Ownership Limit, as defined in Section
4.2 of Seller's Amended and Restated Articles of
Incorporation. Without limiting the foregoing, (i) Xxxxx &
Steers is not and will not be the actual or constructive (by
reason of application of Code Section 544, as modified by
Section 856(h) of the Code) of any of the Shares, (ii) third
party individuals or entities for which Xxxxx & Steers acts as
an investment adviser will be the actual owners of the Shares,
and (iii) to the best knowledge of Xxxxx & Steers, the
purchase of the Shares will not cause any of the Purchasers to
actually or constructively (by reason of application of Code
Section 544, as modified by Section 856(h) of the Code) own
shares of stock of Seller with an aggregate value in excess of
9.8% of the aggregate value of all outstanding stock of
Seller.
5. Conditions to Obligations of the Parties. The obligations of the
parties hereto to effect the transactions contemplated by this
Agreement shall be subject to the satisfaction or waiver at or prior to
the Closing of the following conditions:
(a) each of the representations and warranties of the parties
hereto shall be true and correct in all respects; and
(b) at Closing (as defined below), the Purchaser shall have
received the favorable opinion of counsel to the Seller, dated
as of the Closing, in form and substance reasonably
satisfactory to the Purchaser.
6. Closing. The transactions contemplated hereby shall be consummated on
September 25, 2003 (such time and date of payment and delivery being
herein called the "Closing") on a delivery versus payment basis in
accordance with the "DTC ID System" through Xxxxxxxx & Company,
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Inc., or any appropriate affiliate thereof (with each party to pay a
commission of $.01 per share to Xxxxxxxx & Company, Inc.).
7. Governing Law. This Agreement shall be construed in accordance with and
governed by the substantive laws of the State of New York.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject mater hereof and
may be amended only in a writing that is executed by each of the
parties hereto.
9. Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, and all of which together
shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
SUMMIT PROPERTIES INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXX & STEERS CAPITAL MANAGEMENT, INC.,
on behalf of itself and on behalf of the
Purchasers specified on Schedule A
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
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