Exhibit 10.2
FORM OF AMENDED AND RESTATED WEEKS SERVICES COMPANIES OPTION AGREEMENT
THIS AMENDED AND RESTATED WEEKS SERVICES COMPANIES OPTION AGREEMENT (the
"AGREEMENT") is dated as of__________________, among MWSB, Inc. a Delaware
corporation (the "CORPORATION") and A. Xxx Xxxxx, Xx., Xxxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxxxxx, the holders of all of the voting common stock (other than
voting common stock held by Weeks Realty, L.P.) of each of Weeks Realty
Services, Inc. ("WEEKS SERVICES") and Weeks Construction Services, Inc. ("WEEKS
CONSTRUCTION") (each, a "WEEKS STOCKHOLDER" and together, the "WEEKS
STOCKHOLDERS"), each subsidiaries of Weeks Realty, L.P.
RECITALS
A. The Weeks Stockholders are the owners, beneficially or of record,
of shares of voting common stock, par value $0.01 per share, of Weeks Services
(the "WEEKS SERVICES SHARES") and shares of voting common stock, par value $0.01
per share, of Weeks Construction (the "WEEKS CONSTRUCTION SHARES" and together
with the Weeks Services Shares, the "OPTION SHARES") as set forth on Schedule A
to this Option 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");
C. As an inducement to entering into the REIT Merger Agreement, Duke
Realty Investments, Inc. required that the Weeks Stockholders enter into an
Option Agreement, dated as of February 28, 1999, pursuant to which the Weeks
Stockholders granted to the Corporation an option to purchase the Weeks Services
Shares and the Weeks Construction Shares held by the Weeks Stockholders, upon
the terms and subject to the conditions provided for therein; and
D. The Corporation and the Weeks Stockholders desire to amend and
restate the Prior Agreement in its entirety pursuant to this Agreement.
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
the Weeks Services Shares (the "WEEKS SERVICES OPTION") at a total exercise
price of $20,000 (the "WEEKS SERVICES EXERCISE PRICE"), and the Weeks
Construction Shares (the "WEEKS CONSTRUCTION OPTION" and with the Weeks Services
Option, the "OPTIONS") at a total exercise price of $90,000 (the "Weeks
Construction Exercise Price" and with the Weeks Services Exercise Price, each,
an "EXERCISE PRICE") in the manner set forth below. If any Weeks Stockholder
makes a cash capital contribution to either of Weeks Services or Weeks
Construction, the
Exercise Price relating to the applicable entity shall be increased by the
dollar amount of such capital contribution with respect to the Option Shares
held by such Weeks Stockholder.
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 either or both of the Options at any time or
from time to time on or after the closing of the REIT Merger.
2.2 In the event the Corporation wishes to exercise an 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 with respect to either or both of Weeks Services Shares and
Weeks Construction Shares 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 Option 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 to 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 pro rata percentage of the total Services
Option Shares or Construction Option Shares to be purchased by the applicable
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 corporation 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.
2
ARTICLE 5
GENERAL PROVISIONS
5.1 TERMINATION. This Agreement and the Options 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 the Option is exercised 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):
3
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.
4
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.
5
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
SCHEDULE A
----------
STOCKHOLDER INTERESTS IN WEEKS SERVICES AND WEEKS CONSTRUCTION
NUMBER OF WEEKS NUMBER OF WEEKS
WEEKS STOCKHOLDERS SERVICES OPTION CONSTRUCTION OPTION SHARES
------------------ --------------- --------------------------
A. Xxx Xxxxx, Xx. 00 00
Xxxxxx X. Xxxxxxxx 00 00
Xxxxxxx X. Xxxxxxxx 12 12
