Exhibit 10.1
FORM OF WEEKS HVAC OPTION AGREEMENT
THIS WEEKS HVAC OPTION AGREEMENT (the "AGREEMENT") is dated as of
______________, 1999, among MWSB, Inc. a Delaware corporation (the
"CORPORATION") and A. Xxx Xxxxx, Xx., Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx,
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxxx and Xxxx X. Xxxxxxx, each of
which is a holder of voting common stock of Weeks HVAC, Inc. ("WEEKS HVAC")
(each, a "WEEKS STOCKHOLDER" and together, the "WEEKS STOCKHOLDERS").
RECITALS
A. The Weeks Stockholders are the owners, beneficially or of record,
of shares of the common stock, par value $0.01 per share, of Weeks HVAC (the
"OPTION SHARES") as set forth on Schedule A to this Agreement;
X. Xxxx Realty Investments, Inc. and Weeks Corporation entered into
an Agreement and Plan of Merger, dated as of February 28, 1999, (the "REIT
MERGER AGREEMENT") pursuant to which Weeks Corporation will merge with and into
Duke Realty Investments, Inc. (the "REIT MERGER"); and
C. As an inducement to entering into the REIT Merger Agreement, Duke
Realty Investments, Inc. required that the Weeks Stockholders enter into this
Agreement, pursuant to which the Weeks Stockholders grant to the Corporation an
option to purchase the Option Shares held by the Weeks Stockholders, upon the
terms and subject to the conditions provided for herein.
In consideration of the premises and mutual covenants and agreements
contained in this Agreement and the REIT Merger Agreement, the parties agree as
follows:
ARTICLE 1
GRANT OF OPTION
1.1 Subject to the terms and conditions of this Agreement, the Weeks
Stockholders hereby grant to the Corporation an irrevocable option to purchase
up to 93.75 Option Shares (the "OPTION") at a total exercise price of $[20,000]
(the "EXERCISE PRICE") in the manner set forth below.
ARTICLE 2
EXERCISE OF OPTION
2.1 Prior to the termination of this Agreement in accordance with its
terms, the Corporation or its designee (which shall be a wholly owned subsidiary
of the Corporation) may exercise the Option, in whole or in part, at any time or
from time to time on or after the closing of the REIT Merger; provided
however, that upon the exercise of the Option, whether in whole or in part, the
Corporation must purchase all the Option Shares held by a Weeks Stockholder
whose Option Shares are being purchased.
2.2 In the event the Corporation wishes to exercise all or part of
the Option at such time as the Option is exercisable, the Corporation shall
deliver written notice (the "EXERCISE NOTICE") to the Weeks Stockholders
specifying its intention to exercise the Option, the total number of Option
Shares it wishes to purchase in Weeks HVAC from such Weeks Stockholders and a
date and time for the closing of such purchase (a "CLOSING") to be not later
than 30 business days from the later of (i) the date such Exercise Notice is
given and (ii) the expiration or termination of any applicable waiting period
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR ACT").
ARTICLE 3
PAYMENT OF OPTION PRICE AND DELIVERY OF CERTIFICATES
3.1 Any Closing under Article 2 of this Agreement shall be held at
the offices of Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
at such other place as the parties hereto may agree. At any Closing hereunder,
(a) the Corporation or its designee will pay the Weeks Stockholders pursuant to
exercise of the Option, the aggregate price for the Option Shares being
purchased by wire transfer of immediately available funds pursuant to the Weeks
Stockholders' instructions, in an amount equal to the product obtained by
multiplying the percentage of the Option Shares to be purchased, (such
percentage being as a percentage of the total Option Shares) by the Exercise
Price, and (b) upon receipt of such payment the Weeks Stockholders will deliver
to the Corporation or its designee a certificate or certificates representing
the number of validly transferred, fully paid and nonassessable Option Shares so
purchased in the denominations and registered in such names designated to the
Weeks Stockholders in writing by the Corporation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 The Corporation hereby represents and warrants to the Weeks
Stockholders that it is a general partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware and has requisite
power and authority to enter into and perform this Agreement.
4.2 Each of the Weeks Stockholders represents and warrants to the
Corporation that he, she, or it has full power and authority to enter into this
Agreement and to perform its obligations hereunder.
ARTICLE 5
GENERAL PROVISIONS
5.1 TERMINATION. This Agreement and the Option granted hereunder
shall terminate immediately upon termination of the REIT Merger Agreement.
5.2 CONSENTS. The Corporation and the Weeks Stockholders shall take,
or cause to be taken, all reasonable action to consummate and effect the
transactions contemplated by this Agreement, including, without limitation
reasonable best efforts to obtain any necessary consents of third parties and
governmental agencies and the filing by the Corporation and the Weeks
Stockholders promptly after the date hereof of any required HSR Act notification
forms and the documents required to comply with the HSR Act.
5.3 SEVERABILITY. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, in the event that any provision of this Agreement would
be held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
5.4 SPECIFIC PERFORMANCE. The parties agree and acknowledge that in
the event of a breach of any provision of this Agreement, the aggrieved party
would be without an adequate remedy at law. The parties therefore agree that in
the event of a breach of any provision of this Agreement, the aggrieved party
may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this Agreement. By
seeking or obtaining any such relief, the aggrieved party will not be precluded
from seeking or obtaining any other relief to which it may be entitled.
5.5 AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the Corporation and the Weeks Stockholders.
5.6 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to be
sufficient if contained in a written instrument and shall be deemed given if
delivered personally, telecopied, sent by nationally recognized, overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the other party at the following addresses (or such other
address for a party as shall be specified by like notice):
If to the Corporation:
MWSB, Inc.
c/o Duke Realty Investments, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
Telecopier: (000) 000 0000
with a copy to:
Duke Realty Investments, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telecopier: (000) 000 0000
and with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx., Esq.
Telecopier: (000) 000-0000
If to the Weeks Stockholders:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: A. Xxx Xxxxx, Xx.
Telecopier: (000) 000 0000
with a copy to:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telecopier: (000) 000 0000
5.7 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
5.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
5.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana applicable to contracts made
and to be performed therein.
5.10 JURISDICTION AND VENUE. Each of the Weeks Stockholders and the
Corporation hereby agrees that any proceeding relating to this Agreement shall
be brought in a state court of Indiana . Each of the Weeks Stockholders and the
Corporation hereby consents to personal jurisdiction in any such action brought
in any such Indiana court, consents to service of process by registered mail
made upon such party and such party's agent and waives any objection to venue in
any such Indiana court or to any claim that any such Indiana court is an
inconvenient forum.
5.11 ENTIRE AGREEMENT. This Agreement and the Merger Agreement and any
documents and instruments referred to herein and therein constitute the entire
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the successors and permitted assigns of
the parties hereto. Nothing in this Agreement shall be construed to give any
person other than the parties to this Agreement or their respective successors
or permitted assigns any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained therein.
5.12 EXPENSES. Except as otherwise provided in this Agreement, each
party shall pay its own expenses incurred in connection with this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officers thereunto duly authorized as of the date first
written above.
MWSB, Inc.
By:
-------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Secretary and Treasurer
Weeks Stockholders
By:
-------------------------------------
Name: A. Xxx Xxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman of the Board and
Chief Investment Officer
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President,
Construction Services
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President,
North Carolina Operations
By:
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President,
Landscape Services
By:
-------------------------------------
Name: Xxxx X. Xxxxxxx
SCHEDULE A
OWNERSHIP INTERESTS IN WEEKS HVAC, INC.
WEEKS STOCKHOLDERS NUMBER OF SHARES
------------------ ----------------
A. Xxx Xxxxx, Xx. 35.50
Xxxxxx X. Xxxxxxxx 17.75
Xxxxxxx X. Xxxxxxxx 17.75
Xxxxx X. Xxxxxxx 6.25
Xxxxxx X. Xxxxxx 6.25
Xxxx X. Xxxxxxx 4.00
Xxxx X. Xxxxxxx 6.25
