Exhibit 10.1
CONSULTING SERVICES
AGREEMENT
This Consulting
Services Agreement (“ Agreement ”) is made and
entered into this 18th day of August, 2009, by and between Maguire
Properties, Inc., a Maryland corporation (the “ REIT
”), Maguire Properties, L.P., a Maryland limited partnership
(the “ Operating Partnership ,” and together
with the REIT, the “ Company ”), and Mark T.
Lammas (“ Consultant ”). The Company
and Consultant are sometimes collectively referred to herein as the
“ Parties ” and individually as a “
Party .”
WHEREAS, the
Company is a full service, public real estate company doing
business primarily in Southern California, and the owner of a
portfolio of office buildings and land held for
development;
WHEREAS,
Consultant is a highly experienced real estate executive and a
former executive officer of the Company, with unique knowledge and
expertise concerning the assets, development entitlements, business
strategy and management of the Company;
WHEREAS, the
Company and Consultant have concurrently entered into that certain
Separation Agreement, dated as of August 18, 2009 (the “
Separation Agreement ”), pursuant to which
Consultant’s employment with the Company terminated effective
as of September 1, 2009; and
WHEREAS, the
Company and Consultant desire that Consultant provide the Company
with services relating to the Company’s business and
operations.
NOW THEREFORE,
in consideration of the mutual covenants and agreements contained
herein, the Parties hereby agree as follows:
1.
Engagement. The Company
hereby engages Consultant, and Consultant agrees to provide certain
consulting services to the Company, in accordance with the terms of
this Agreement.
2.
Consulting Period. During the period
commencing on September 1, 2009 (the “ Effective Date
”) and ending on February 28, 2010, or such earlier date on
which Consultant’s consulting relationship with the Company
is terminated as provided herein (the “ Consulting
Period ”), Consultant shall, at the Company’s
request, provide consulting services to the Company as set forth in
Section 3 below (the “ Consulting Services
”).
3.
Services To Be Provided. Consultant shall from
time to time provide Consulting Services to the Company with regard
to the business and operations of the Company and its subsidiaries
and affiliates. Consultant shall provide the Consulting
Services at the request of the Company’s Board of Directors,
its Chief Executive Officer or any of their
designees. Consultant shall hold himself available at
reasonable times and on reasonable notice to render the Consulting
Services during the Consulting Period; provided, however ,
that the Consulting Services rendered by Consultant during the
Consulting
Period shall not exceed 40 hours each calendar
month. Without limiting the foregoing, Consultant shall,
upon the reasonable request of the persons specified above,
(a) consult with the Company with respect to all matters
concerning the Company in which Consultant had personal involvement
during his period of employment with the Company, (b) assist
the Company in the negotiation and consummation of business matters
and prospects pending at the time of his termination and
thereafter, and (c) cooperate with and assist the Company in
undertaking and preparing for legal and other proceedings relating
to the affairs of the Company and its subsidiaries.
4.
Non-Exclusive Relationship
. The Consulting Services being
provided by Consultant are on a non-exclusive basis, and Consultant
shall be entitled to perform or engage in any activity not
inconsistent with or otherwise prohibited by this Agreement, the
Separation Agreement or the surviving provisions of that certain
Amended and Restated Employment Agreement with the Company, dated
as of December 31, 2008 (the “ Employment Agreement
”). Without limiting the foregoing, the Parties
hereby reaffirm the covenants and provisions set forth in Section 9
of the Employment Agreement and acknowledge and agree that the
provisions of Section 9 of the Employment Agreement survived the
termination of Consultant’s employment with the Company
pursuant to the terms of the Separation Agreement and shall remain
in full force and effect.
5.
Compensation . The
Company shall pay Consultant the following compensation for the
Consulting Services provided hereunder:
(a)
Consulting Fee . During the Consulting
Period, the Company shall pay Consultant a monthly retainer of
$20,000 for Consulting Services to be performed by Consultant (the
“ Consulting Fee ”). Consultant shall
submit an invoice to the Company on a monthly basis not later than
the 15 th day following the last day of such month,
reasonably detailing time expended and a description of the nature
of the Consulting Services rendered; provided, that the failure to
submit such invoice shall not relieve the Company of its obligation
to pay the Consulting Fee hereunder. The Company shall
pay Consultant the Consulting Fee for such services promptly, but
in no event later than 30 days following the last day of the month
with respect to which such services are performed.
(b)
Success Fees . In addition to the
Consulting Fee, the Company shall pay to Consultant a contingent
success fee as indicated on Schedule A hereto for the
successful completion during the Consulting Period of each of the
objectives set forth on Schedule A hereto (each, a “
Success Fee ”), provided that Consultant provided
material Consulting Services with respect to such objective in
accordance with Section 3 hereof; provided, however, that in
no event shall Consultant be entitled to any Success Fee with
respect to any objective completed on or prior to September 7,
2009. Schedule A may be amended or supplemented
from time to time by a written instrument signed by each of the
Parties.
Except as
expressly provided in Section 12, subject to Consultant’s
performance of Consulting Services through the successful
completion of the applicable objective set forth on Schedule
A , the Company shall pay Consultant the Success Fees, if any,
payable
to Consultant
pursuant to this Section 5(b), within 10 days following successful
completion of the applicable objective(s).
(c)
Tax Obligations . Consultant shall be responsible
for the payment of all taxes owed on all amounts paid to Consultant
by the Company hereunder and shall protect the Company from any
liability for the payment of any taxes of any kind with respect to
the amounts paid to Consultant hereunder.
6.
Reimbursable Costs . The Company
shall reimburse Consultant in accordance with general policies and
practices of the Company for actual and reasonable expenses
incurred in performing the Consulting Services (“
Reimbursable Costs ”), payable within 30 days of
receipt of an invoice. To the extent that any
reimbursements provided to Consultant under this Section 6 are
deemed to constitute compensation to Consultant, such amounts shall
be paid or reimbursed reasonably promptly, but not later than
December 31 of the year following the year in which the expense was
incurred. The amount of any reimbursements that
constitute compensation in one year shall not affect the amount of
reimbursements constituting compensation that are eligible for
payment or reimbursement in any other year, and Consultant’s
right to such payments or reimbursement of any such expenses shall
not be subject to liquidation or exchange for any other
benefit.
7.
Duties of the Company. The
Company shall (i) grant Consultant access to records, files,
employees and consultants as reasonably required for Consultant to
perform the Consulting Services contemplated herein; and (ii) pay
to Consultant the amounts due to Consultant within the time periods
specified herein.
8.
Duties of Consultant. Subject to
Section 3 above, Consultant shall (i) dedicate such time commitment
to the Consulting Services as is reasonably necessary to perform
such Consulting Services, (ii) comply with all applicable federal,
state and municipal laws and regulations required to enable
Consultant to render to the Company the Consulting Services called
for herein; (iii) maintain the confidentiality of all Company
records, trade secrets and other confidential information to which
he may have or obtain knowledge or access pursuant to this
Agreement; and (iv) upon termination of the Consulting Period,
return to the Company all Company property in Consultant’s
possession, including without limitation, keys, credit cards,
telephone calling cards, computer hardware and software, cellular
and portable telephone equipment, personal digital assistant (PDA)
devices, manuals, books, notebooks, financial statements, reports
and other documents.
9.
Assignment. Neither Party
shall assign any rights or delegate any obligations under this
Agreement, except as otherwise may be agreed in writing by both
Parties; provided , that the Company may, without such
consent, assign its rights and obligations to one or more of its
affiliates.
10.
Retention of Authority. Throughout
the Consulting Period, the Company shall retain all authority and
control over the business, policies, operations and assets of the
Company. Consultant shall not
knowingly violate any rules or policies of the Company or violate
any applicable law in connection with the performance of the
Consulting Services. The Company does not, by virtue of
the Agreement, delegate to Consultant any of the powers, duties or
responsibilities vested in the Company by law or under the
organizational documents of the Company.
11.
Independent Consultant Status.
In performing the Consulting Services
herein, the Company and Consultant agree that Consultant shall at
all times be acting solely as an independent contractor and not as
an employee of the Company. The parties acknowledge that
Consultant was, prior to the Effective Date, an employee of the
Company, serving as Executive Vice President, Investments of the
Company, but that such employment relationship has terminated
immediately prior to the effectiveness of this
Agreement. The Company and Consultant agree that
Consultant will not be an employee of the Company during the term
hereof in any matter under any circumstances or for any purposes
whatsoever, and that Consultant and not the Company shall have the
authority to direct and control Consultant’s performance of
his activities hereunder. The Company shall not pay, on
the account of Consultant or any principal, employee or contractor
of Consultant, any unemployment tax or other taxes, required under
the law to be paid with respect to employees; nor shall the Company
withhold any monies from the fees of Consultant for income tax
purposes; nor shall the Company provide Consultant or any
principal, employee or contractor of Consultant with any benefits,
including pension, retirement, or any kind of insurance benefits,
including workers’ compensation
insurance. Consultant and the Company hereby agree and
acknowledge that this Agreement does not impose any obligation on
the Company to offer employment to Consultant at any
time. Nothing contained in this Agreement s
