EXHIBIT 10.4
EXHIBIT B
AGREEMENT AND IRREVOCABLE PROXY
AGREEMENT and IRREVOCABLE PROXY (the "Agreement"), dated as of February
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28, 1999, by and among the undersigned shareholders of Weeks Corporation (the
"Weeks Shareholders"), the undersigned principal holders of units of limited
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partner interest in Weeks Realty, L.P. (the "Weeks OP Unitholders"), and Duke
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Realty Investments, Inc., an Indiana corporation ("Duke").
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A. The Weeks Shareholders are the owners, beneficially or of record,
of certain shares of common stock, par value $0.01 per share (all such shares,
the "Weeks Shares"), of Weeks Corporation, a Georgia corporation ("Weeks") as
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set forth on Schedule A;
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B. The Weeks OP Unitholders are the owners, beneficially or of
record, of certain units of limited partner interest (all such units, the "Weeks
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OP Units") of Weeks Realty, L.P., a Georgia limited partnership ("Weeks OP") as
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set forth on Schedule A;
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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 Realty Limited Partnership, an Indiana limited partnership ("Duke OP"), and
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Weeks OP are entering into an Agreement and Plan of Merger (the "OP Merger
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Agreement" and together with the REIT Merger Agreement, the "Merger Agreements")
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pursuant to which Weeks OP will merge with and into Duke OP (the "OP Merger");
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D. As a condition to the willingness of Duke, and Duke OP to enter
into the Merger Agreements, and in order to induce Duke and Duke OP to enter
into the Merger Agreements, the Weeks Shareholders and the Weeks 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.
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(a) Each of the Weeks Shareholders and Weeks OP Unitholders hereby
irrevocably constitute and appoint Duke as their true and lawful proxy and
attorney-in-fact, for and in the name, place and stead of each of the Weeks
Shareholders and Weeks OP Unitholders, solely
to vote or cause to be voted all of the Weeks Shares and the Weeks OP Units,
together with any additional shares of Weeks common stock and units of limited
partner interest in Weeks OP that such Weeks Shareholders and Weeks 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 shareholders of Weeks and/or the limited partners of Weeks
OP, as the case may be, and at any adjournment or postponements thereof (each, a
"Meeting"), or pursuant to any written consent in lieu of a meeting or
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otherwise.
(b) In the event that Duke is unable or declines to exercise the power
and authority granted by the Proxy for any reason, each of the Weeks
Shareholders and the Weeks OP Unitholders covenant and agree to vote or cause to
be voted all of the Weeks Shares in favor of approval and adoption of the Merger
Agreements and the REIT Merger, and the Weeks 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 Duke,
to provide their written consent thereto.
(c) The Weeks Shareholders hereby covenant and agree that they will
not vote, cause to be voted or take any action by written consent of
shareholders in lieu of a meeting on any matter which is subject to this
Agreement without the prior written consent of Duke, and will promptly provide
Duke with copies of any shareholder notices given by Weeks and received by the
Weeks Shareholders.
(d) The Weeks 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 Weeks OP in lieu of a meeting on any matter which is subject to
this Agreement without the prior written consent of Duke, and will promptly
provide Duke with copies of any notice given by Weeks OP and received by the
Weeks OP Unitholders.
(e) Notwithstanding any other provision of this Agreement to the
contrary, this Agreement shall not impose any duty on any Weeks Shareholder or
Weeks OP Unitholder in his capacity a director of Weeks which, in the exercise
of such director's good faith judgment, violates his fiduciary duties to the
shareholders of Weeks.
2. Covenants by the Weeks Shareholders. The Weeks Shareholders,
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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 Weeks Shares, or grant any
proxy, power-of-attorney or other authorization or interest in
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or with respect to such Weeks Shares, or deposit such Weeks Shares into a voting
trust or enter into a voting agreement or arrangement with respect to such Weeks
Shares unless and until they shall have taken all actions (including, without
limitation, the endorsement of a legend on the certificates evidencing such
Weeks Shares) necessary to ensure that such Weeks 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 Weeks 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 Weeks OP Unitholders. The Weeks 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 Weeks OP Units, or grant any
proxy, power-of-attorney or other authorization or interest in or with respect
to such Weeks OP Units, or deposit such Weeks OP Units into a voting trust or
enter into a voting agreement or arrangement with respect to such Weeks OP Units
unless and until they shall have taken all actions necessary to ensure that such
Weeks 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 Weeks 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 Weeks Shareholders and
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the Weeks OP Unitholders represents and warrants to Duke that he, she, or it has
full power and authority to enter into this Agreement, to grant the Proxy and to
perform his, her or 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 WEEKS SHAREHOLDERS, THE WEEKS OP UNITHOLDERS AND DUKE
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 WEEKS SHAREHOLDERS, THE
WEEKS OP UNITHOLDERS OR DUKE, BY LACK OF APPROPRIATE POWER OR AUTHORITY OR BY
THE OCCURRENCE OF ANY OTHER EVENT OR EVENTS EXCEPT AS PROVIDED HEREIN.
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(c) THIS POWER OF ATTORNEY SHALL NOT BE AFFECTED BY THE DEATH OR
DISABILITY OF ANY WEEKS SHAREHOLDER OR WEEKS 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 Weeks Shareholders and the Weeks OP Unitholders
acknowledge and agree that performance of their respective obligations hereunder
will confer a unique benefit on Duke 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 Weeks Shareholders and the Weeks OP Unitholders will,
upon request, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Duke to be necessary or desirable to
complete the proxies granted herein or to carry out the provisions hereof.
(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.
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IN WITNESS WHEREOF, the Weeks Shareholders, Weeks OP Unitholders and
Duke have duly executed this Agreement or caused this Agreement to be duly
executed as of the date first above written.
DUKE REALTY INVESTMENTS, INC.
By:_______________________________
Name:
Title:
WEEKS SHAREHOLDERS
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WEEKS OP UNITHOLDERS
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