EXHIBIT 10.3
EXHIBIT C
AGREEMENT AND IRREVOCABLE PROXY
AGREEMENT and IRREVOCABLE PROXY (the "Agreement"), dated as of
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February 28, 1999, by and among the undersigned shareholders of Duke Realty
Investments, Inc. (the "Duke Stockholders"), the undersigned principal holders
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of units of limited partner interest in Duke Realty Limited Partnership (the
"Duke OP Unitholders"), and Weeks Corporation, a Georgia corporation ("Weeks").
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A. The Duke Stockholders are the owners, beneficially or of record,
of certain shares of common stock, par value $0.01 per share (all such shares,
the "Duke Shares"), of Duke Realty Investments, Inc., an Indiana corporation
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("Duke");
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B. The Duke OP Unitholders are the owners, beneficially or of record,
of certain units of limited partner interest (all such units, the "Duke OP
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Units"), of Duke Realty Limited Partnership, an Indiana limited partnership
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("Duke OP");
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C. Simultaneously with the execution and delivery of this Agreement,
Duke and Weeks are entering into an Agreement and Plan of Merger (the "REIT
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Merger Agreement") pursuant to which Weeks will merge with and into Duke and
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Duke OP and Weeks, L.P., a Georgia limited partnership ("Weeks OP") are entering
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into an Agreement and Plan of Merger (the "OP Merger Agreement" and together
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with the REIT Merger Agreement, the "Merger Agreements") pursuant to which Weeks
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OP will merge with and into Duke OP (the "OP Merger");
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D. As a condition to the willingness of Weeks, and Weeks OP to enter
into the Merger Agreements, and in order to induce Weeks and Weeks OP to enter
into the Merger Agreements, the Duke Stockholders and the Duke OP Unitholders
have agreed to enter into this Agreement.
In consideration of the promises and mutual covenants provided herein,
and other good and sufficient consideration, the receipt of which is
acknowledged by each party hereto, the parties hereto agree as follows:
1. Proxy.
(a) Each of the Duke Stockholders and Duke OP Unitholders hereby
irrevocably constitute and appoint Weeks as their true and lawful proxy and
attorney-in-fact, for and in the name, place and stead of each of the Duke
Stockholders and Duke OP Unitholders, solely to vote or cause to be voted all of
the Duke Shares and the Duke OP Units, together with any additional shares of
Duke common stock and units of limited partner interest in Duke OP that such
Duke Stockholders and Duke OP Unitholders shall acquire, between the date of
this Agreement and the date of termination of this Agreement (i) in favor of the
Merger Agreements, the REIT Merger and the OP Merger, respectively, and any
other actions and transactions contemplated in connection therewith and (ii)
against any Competing Transaction (as defined in the Merger Agreements), in each
case, at any annual, special or other meeting of the
stockholders of Duke and/or the limited partners of Duke OP, as the case may be,
and at any adjournment or postponements thereof (each, a "Meeting"), or pursuant
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to any written consent in lieu of a meeting or otherwise.
(b) In the event that Weeks is unable or declines to exercise the
power and authority granted by the Proxy for any reason, each of the Duke
Stockholders and the Duke OP Unitholders covenant and agree to vote or cause to
be voted all of the Duke Shares in favor of approval and adoption of the Merger
Agreements and the REIT Merger, and the Duke OP Units in favor of the Merger
Agreements and the OP Merger, and any other actions and transactions
contemplated in connection therewith at any Meeting and, upon request of Weeks,
to provide their written consent thereto.
(c) The Duke Stockholders hereby covenant and agree that they
will not vote, cause to be voted or take any action by written consent of
stockholders in lieu of a meeting on any matter which is subject to the Proxy
without the prior written consent of Weeks, and will promptly provide Weeks with
copies of any stockholder notices given by Duke and received by the Duke
Stockholders.
(d) The Duke OP Unitholders hereby covenant and agree that they
will not vote, cause to be voted or take any action by written consent of
limited partners of Duke OP in lieu of a meeting on any matter which is subject
to the Proxy without the prior written consent of Weeks, and will promptly
provide Weeks with copies of any notice given by Duke OP and received by the
Duke OP Unitholders.
(e) Notwithstanding any other provision of this Agreement to the
contrary, this Agreement shall not impose any duty on any Duke Stockholder or
Duke OP Unitholder in his/her capacity as director of Duke which, in the
exercise of such director's good faith judgment, violates his/her fiduciary
duties to the shareholders of Duke.
2. Covenants by the Duke Stockholders. The Duke Stockholders,
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individually, hereby covenant and agree that they will not, and will not agree
to, directly or indirectly, sell, transfer, assign, pledge, hypothecate, cause
to be redeemed or otherwise dispose of any of the Duke Shares, or grant any
proxy, power-of-attorney or other authorization or interest in or with respect
to such Duke Shares, or deposit such Duke Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Duke Shares unless
and until they shall have taken all actions (including, without limitation, the
endorsement of a legend on the certificates evidencing such Duke Shares)
necessary to ensure that such Duke Shares shall at all times be subject to the
rights, powers and privileges granted or conferred, and subject to all
restrictions, covenants and limitations imposed, by this Agreement and shall
have caused any transferee of any of the Duke Shares to execute and deliver to
the other party hereto, an Agreement and Irrevocable Proxy consistent with the
terms contained herein.
3. Covenants by the Duke OP Unitholders. The Duke OP Unitholders,
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individually, hereby covenant and agree that they will not, and will not agree
to, directly or indirectly, sell, transfer, assign, pledge, hypothecate, cause
to be redeemed or otherwise dispose of any of the Duke OP Units, or grant any
proxy, power-of-attorney or other authorization or interest in or with respect
to such Duke OP Units, or deposit such Duke OP Units into a voting
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trust or enter into a voting agreement or arrangement with respect to such Duke
OP Units unless and until they shall have taken all actions necessary to ensure
that such Duke OP Units shall at all times be subject to the rights, powers and
privileges granted or conferred, and subject to all restrictions, covenants and
limitations imposed, by this Agreement and shall have caused any transferee of
any of the Duke OP Units to execute and deliver to the other party hereto, an
Agreement and Irrevocable Proxy consistent with the terms contained herein.
4. Representation and Warranty. Each of the Duke Stockholders and
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the Duke OP Unitholders represents and warrants to Weeks that he, she, or it has
full power and authority to enter into this Agreement, to grant the Proxy and to
perform its obligations hereunder.
5. Miscellaneous.
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(a) The terms and provisions of this Agreement shall be governed
by and construed in accordance with the laws of the State of Indiana without
giving effect to the conflicts of law provisions thereof.
(b) EACH OF THE DUKE STOCKHOLDERS, THE DUKE OP UNITHOLDERS AND
WEEKS AGREE THAT THE PROXY AND ALL OTHER POWER AND AUTHORITY INTENDED TO BE
CONFERRED HEREBY ARE COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN
IRREVOCABLE POWER AND SHALL NOT BE TERMINATED BY ANY ACT OF THE DUKE
STOCKHOLDERS, THE DUKE OP UNITHOLDERS OR WEEKS, BY LACK OF APPROPRIATE POWER OR
AUTHORITY OR BY THE OCCURRENCE OF ANY OTHER EVENT OR EVENTS EXCEPT AS PROVIDED
HEREIN.
(c) THIS POWER OF ATTORNEY SHALL NOT BE AFFECTED BY THE DEATH OR
DISABILITY OF ANY DUKE STOCKHOLDER OR DUKE OP UNITHOLDER.
(d) This Agreement and the Proxy granted hereunder shall
terminate immediately upon the termination of the REIT Merger Agreement or the
consummation of the transactions contemplated thereby.
(e) Each of the Duke Stockholders and the Duke OP Unitholders
acknowledge and agree that performance of their respective obligations hereunder
will confer a unique benefit on Weeks and that a failure of performance will
result in irreparable harm to the other and will not be compensable by money
damages. The parties therefore agree that this Agreement, including the Proxy,
shall be specifically enforceable and that specific enforcement and injunctive
relief shall be remedies properly available to the other party for any breach of
any agreement, covenant or representation of the other hereunder. The terms and
provisions of this Agreement shall be binding upon, inure to the benefit of, and
be enforceable by and against the personal representatives, heirs, successors
and assigns of the parties hereto.
(f) Each of the Duke Stockholders and the Duke OP Unitholders
will, upon request, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Weeks to be necessary or
desirable to complete the proxies granted herein or to carry out the provisions
hereof.
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(g) If any term, provision, covenant or restriction of this
Agreement, or the application thereof to any circumstance, shall, to any extent,
be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement or the application thereof to any other
circumstance, shall remain in full force and effect, shall not in any way be
affected, impaired or invalidated and shall be enforced to the fullest extent
permitted by law.
(h) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one
and the same document.
IN WITNESS WHEREOF, the Duke Stockholders, Duke OP Unitholders and
Weeks have duly executed this Agreement or caused this Agreement to be duly
executed as of the date first above written.
WEEKS CORPORATION
By:
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