EXHIBIT 10.2
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AGREEMENT AND PLAN OF MERGER
Dated as of February 28, 1999
by and among
DUKE REALTY LIMITED PARTNERSHIP
and
WEEKS REALTY, L.P.
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TABLE OF CONTENTS
Page
ARTICLE I THE MERGER......................................................... 1
Section 1.1 The Merger.................................................... 1
Section 1.3 Effective Time................................................ 2
Section 1.4 Agreement of Limited Partnership.............................. 2
Section 1.5 Partnership Approvals......................................... 2
ARTICLE II EFFECTS OF THE MERGER.............................................. 3
Section 2.1 Effect on Partner Interests................................... 3
(a) OP Units...................................................... 3
(b) Exchange, Registration Rights................................. 3
ARTICLE III CONDITIONS PRECEDENT............................................... 3
Section 3.1 Conditions to Each Party's Obligation to Effect the OP Merger. 3
ARTICLE IV TERMINATION, AMENDMENT AND WAIVER.................................. 4
Section 4.1 Termination................................................... 4
Section 4.2 Effect of Termination......................................... 4
Section 4.3 Amendment..................................................... 4
Section 4.4 Extension; Waiver............................................. 4
ARTICLE V GENERAL PROVISIONS................................................. 4
Section 5.1 Notices....................................................... 4
Section 5.2 Interpretation................................................ 5
Section 5.3 Counterparts.................................................. 5
Section 5.4 Entire Agreement; No Third-Party Beneficiaries................ 5
Section 5.5 GOVERNING LAW................................................. 5
Section 5.6 Assignment.................................................... 5
Section 5.7 Enforcement................................................... 5
-i-
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of February 28,
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1999, by and among DUKE REALTY LIMITED PARTNERSHIP, an Indiana Limited
Partnership ("Duke OP") and WEEKS REALTY, L.P., a Georgia Limited Partnership
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("Weeks OP").
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RECITALS
▇. ▇▇▇▇ Realty Investments, Inc., as the managing general partner of Duke
OP, and Weeks Corporation (through its wholly owned subsidiary), as the general
partner of Weeks OP each has determined that it is advisable and in the best
interest of their respective partnerships and partners that upon the terms and
subject to the conditions set forth in this Agreement, Weeks OP will merge with
and into Duke OP with Duke OP being the surviving partnership in such merger
(the "OP Merger") and: (i) each issued and outstanding common unit of limited
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partnership interest in Weeks OP (the "Weeks Common Units"), (ii) each issued
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and outstanding 8.0% Series A Cumulative Redeemable Preferred Partnership Unit
in Weeks OP (the "Weeks Series A Preferred Units"), (iii) each issued and
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outstanding 8.0% Series C Cumulative Redeemable Preferred Partnership Unit in
Weeks OP (the "Weeks Series C Preferred Units"), and (iv) each issued and
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outstanding 8.625% Series D Cumulative Redeemable Preferred Partnership Unit in
Weeks OP (the "Weeks Series D Preferred Units" and, collectively, with the Weeks
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Common Units, the Weeks Series A Preferred Units and the Weeks Series C
Preferred Units, the "Weeks OP Units") will be converted into the right to
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receive the OP Merger Consideration (as defined herein).
B. The Boards of Directors of Duke Realty Investments, Inc., an Indiana
corporation ("Duke") and Weeks Corporation, a Georgia Corporation, ("Weeks")
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each have determined that it is advisable and in the best interest of their
respective companies and stockholders that upon the terms and subject to the
conditions set forth in an agreement and plan of merger between Duke and Weeks
executed on the date hereof and substantially in the form of Exhibit A hereto
(the "REIT Merger Agreement"), Weeks will merge with and into Duke with Duke
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being the surviving corporation in such merger (the "REIT Merger") and each
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issued and outstanding share of common stock, par value $.01 per share, of Weeks
(the "Weeks Common Stock"), each issued and outstanding share of 8.0% Series A
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Cumulative Redeemable Preferred Stock, par value $.01 per share, of Weeks (the
"Weeks Series A Preferred Stock") and each issued and outstanding share, if any,
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of 8.625% Series D Cumulative Redeemable Preferred Stock, par value $.01 per
share, of Weeks (the "Weeks Series D Preferred Stock"), will be converted into
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the right to receive the applicable Merger Consideration (as defined in the REIT
Merger Agreement);
In consideration of the representations, warranties, covenants and
agreements contained in this Agreement, the parties agree as follows:
ARTICLE I
THE MERGER
Section 1.1. The Merger.
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(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as hereinafter defined), Weeks OP shall be
merged with and into Duke OP in accordance with the Indiana Revised Uniform
Limited Partnership Act (the "IRULPA") and the Georgia Revised Uniform
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Limited Partnership Act (the "GRULPA," and together with the IRULPA, the
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"Governing Laws"), whereupon the separate corporate existence of Weeks OP
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shall cease and Duke OP shall continue as the surviving limited partnership
(the "Surviving OP").
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(b) The OP Merger shall have the effects set forth in the Governing Laws.
Accordingly, from and after the Effective Time, the Surviving OP shall possess
all the rights, privileges, powers and franchises and be subject to all of the
restrictions, disabilities, liabilities and duties of Duke OP and Weeks OP.
Section 1.2. Closing. The closing of the transactions contemplated by
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this Agreement (the "Closing") will take place at 10:00 a.m. New York City time
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on the second business day after satisfaction or waiver of the conditions set
forth in Article III (the "Closing Date"), at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, unless another date or place is
agreed to in writing by the parties.
Section 1.3. Effective Time. On the Closing Date, the parties shall
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execute and file a Certificate of Merger in accordance with GRULPA and an
Articles of Merger in accordance with IRULPA and shall make all other filings or
recordings required with respect to the OP Merger under the Governing Laws. The
OP Merger shall become effective at such time as the Certificate of Merger and
Articles of Merger for the OP Merger have been duly filed with the Secretary of
State of Georgia and the Secretary of State of Indiana, respectively, or at such
other time or times as may be agreed by Duke OP and Weeks OP and specified in
the Certificate of Merger and Articles of Merger (the time the OP Merger becomes
effective being the "Effective Time"), it being understood that the parties
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shall cause the Effective Time to occur on the Closing Date.
Section 1.4. Agreement of Limited Partnership. The second amended and
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restated agreement of limited partnership of Duke OP, as amended in accordance
with Section 5.17 of the REIT Merger Agreement, shall become the agreement of
limited partnership (the "Duke OP Agreement") of the Surviving OP upon the
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occurrence of the Effective Time until further amended in accordance with
applicable Indiana law.
Section 1.5. Partnership Approvals
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(a) Weeks OP represents and warrants to Duke OP that as of the date of
this Agreement it has obtained all the written consents of the holders of Weeks
OP Units required to approve the OP Merger and this Agreement and the
transactions contemplated by this Agreement (the "Weeks OP Approvals").
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(b) Duke OP represents and warrants to Weeks OP that as of the date of
this Agreement it has obtained all the written consents of the holders of Duke
OP Units required to approve the OP Merger and this Agreement and the
transactions contemplated by this Agreement (the "Duke OP Approvals").
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ARTICLE II
EFFECTS OF THE MERGER
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Section 2.1. Effect on Partner Interests.
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(a) OP Units. At the effective time of the OP Merger: (i) each issued
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and outstanding Weeks Common Unit shall be converted, by virtue of the OP
Merger, automatically and without any action on the part of any holder thereof,
into 1.38 common units of limited partnership interest in Duke OP (the "Duke
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Common Units"); (ii) each issued and outstanding Weeks Series A Preferred Unit
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shall be converted, by virtue of the OP Merger, automatically and without any
action on the part of any holder thereof, into 1/1000 of one 8.0% Series F
Cumulative Redeemable Preferred Units in Duke OP (the "Duke Series F Preferred
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Units"), (iii) each issued and outstanding Weeks Series C Preferred Unit shall
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be converted, by virtue of the OP Merger, automatically and without any action
on the part of any holder thereof, into 1/1000 of one 8.0 % Series G Cumulative
Redeemable Preferred Units in Duke OP (the "Duke Series G Preferred Units"), and
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(iv) each issued and outstanding Weeks Series D Preferred Unit shall be
converted, by virtue of the OP Merger, automatically and without any action on
the part of any holder thereof, into 1/1000 of one 8.625% Series H Cumulative
Redeemable Preferred Units in Duke OP (the "Duke Series H Preferred Units" and,
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collectively, with the Duke Common Units, the Duke Series F Preferred Units, and
the Duke Series G Preferred Units, the "Duke OP Units") (the "OP Merger
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Consideration") and all Weeks OP Units shall cease to be outstanding and shall
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automatically be cancelled and retired and all rights with respect thereto shall
cease to exist.
(b) Exchange, Registration Rights. Prior to and at the Effective Time
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Duke OP and Weeks OP shall take such actions (and shall cause Duke and Weeks to
take such actions) as may be required so that:
(i) The exchange rights granted to the limited partners of Weeks OP
pursuant to the terms and conditions set forth in the Second Amended and
Restated Agreement of Limited Partnership of Weeks OP, dated as of October 30,
1996, as amended, and all obligations thereunder shall be assumed by Duke OP as
of such Effective Time (it being understood that following such effective time,
the holders of Duke OP Units that were converted in the OP Merger from Weeks OP
Units will have the right to require Duke OP to redeem their converted units for
cash or common stock in Duke at the election of the General Partner of Duke OP);
and
(ii) the Registration Rights Agreements currently in effect, among
Weeks, Weeks OP and the holders of Weeks OP Units and the obligations thereunder
shall be assumed by Duke as of such Effective Time.
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ARTICLE III
CONDITIONS PRECEDENT
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Section 3.1. Conditions to Each Party's Obligation to Effect the OP Merger.
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The respective obligations of Weeks OP and Duke OP to effect the OP Merger and
to consummate the other transactions contemplated by this Agreement to occur on
the Closing Date is subject to the satisfaction or waiver on or prior to the
Effective Time of the conditions (other than the consummation of the OP Merger)
and the performance of all the obligations by Weeks and Duke required pursuant
to the REIT Merger Agreement in order to effect the REIT Merger and the other
transactions contemplated thereunder.
ARTICLE IV
TERMINATION, AMENDMENT AND WAIVER
Section 4.1. Termination. This Agreement may not be terminated at any
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time, provided that notwithstanding anything to the contrary contained herein,
this Agreement shall terminate immediately upon termination of the REIT Merger
Agreement.
Section 4.2. Effect of Termination. In the event of termination of this
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Agreement as provided in Section 4.1, this Agreement shall forthwith become void
and have no effect, without any liability or obligation on the part of Duke OP
or Weeks OP.
Section 4.3. Amendment. This Agreement may be amended by the parties in
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writing by action of their respective general partners at any time.
Section 4.4. Extension; Waiver. At any time prior to the Effective Time,
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each of Weeks OP and Duke OP may (a) extend the time for the performance of any
of the obligations or other acts of the other party or (b) waive compliance with
any of the agreements or conditions of the other party contained in this
Agreement. Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
ARTICLE V
GENERAL PROVISIONS
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Section 5.1. Notices. All notices, requests, claims, demands and other
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communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, sent by overnight courier (providing proof of
delivery) to the parties or sent by telecopy (providing confirmation of
transmission) at the following addresses or telecopy numbers (or at such other
address or telecopy number for a party as shall be specified by like notice):
(a) if to Duke OP, to
Duke Realty Investments, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
with a copy to:
Duke Realty Investments, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
and with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Weeks OP, to
Weeks Corporation
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▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: A. ▇▇▇ ▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
with a copy to:
Weeks Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇)▇▇▇ ▇▇▇▇
Section 5.2. Interpretation. When a reference is made in this Agreement
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to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
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Section 5.3. Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 5.4. Entire Agreement; No Third-Party Beneficiaries. This
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Agreement, and the other agreements entered into in connection with the
transactions (a) constitute the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter of this Agreement and are not intended to confer
upon any person other than the parties hereto any rights or remedies.
Section 5.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA , REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS THEREOF.
Section 5.6. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations under this Agreement shall be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
Section 5.7. Enforcement. The parties agree that irreparable damage would
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occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Indiana or in any Indiana State court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself (without
making such submission exclusive) to the personal jurisdiction of any federal
court located in the State of Indiana or any Indiana State court in the event
any dispute arises out of this Agreement or any of the transactions contemplated
by this Agreement and (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court.
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IN WITNESS WHEREOF, Duke OP and Weeks OP have caused this Agreement to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
DUKE REALTY LIMITED PARTNERSHIP
By:
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Name:
Title:
WEEKS REALTY, L.P.
By:
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Name:
Title:
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