Exhibit 9.1
AGREEMENT AND IRREVOCABLE PROXY
AGREEMENT and IRREVOCABLE PROXY (the "AGREEMENT"), dated as of February
28, 1999, by and among the undersigned shareholders of Weeks Corporation (the
"Weeks Shareholders"), the undersigned principal holders of units of limited
partner interest in Weeks Realty, L.P. (the "Weeks OP Unitholders"), and Duke
Realty Investments, Inc., an Indiana corporation ("Duke").
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 set
forth on Schedule A;
B. The Weeks OP Unitholders are the owners, beneficially or of
record, of certain units of limited partner interest (all such units, the "Weeks
OP Units") of Weeks Realty, L.P., a Georgia limited partnership ("WEEKS OP") as
set forth on SCHEDULE A;
C. Simultaneously with the execution and delivery of this Agreement,
Duke and Weeks are entering into an Agreement and Plan of Merger (the "REIT
MERGER AGREEMENT") pursuant to which Weeks will merge with and into Duke and
Duke Realty Limited Partnership, an Indiana limited partnership ("DUKE OP"), and
Weeks OP are entering into an Agreement and Plan of Merger (the "OP MERGER
AGREEMENT" and together with the REIT Merger Agreement, the "MERGER AGREEMENTS")
pursuant to which Weeks OP will merge with and into Duke OP (the "OP MERGER");
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.
(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 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 written 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 as a director of Weeks or
Weeks GP Holdings, Inc., which, in the exercise of such director's good faith
judgment, violates his fiduciary duties to the shareholders of Weeks or the
unitholders of Weeks OP, as the case may be.
2. COVENANTS BY THE WEEKS SHAREHOLDERS. The Weeks Shareholders,
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 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, 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 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.
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5. MISCELLANEOUS.
(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.
(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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
WEEKS SHAREHOLDERS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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CODINA FAMILY INVESTMENTS, LTD.
By: CODINA INVESTMENTS, INC.
its General Partner,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
CODINA WEST DADE DEVELOPMENT
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
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WEEK OP UNITHOLDERS
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
CODINA FAMILY INVESTMENTS, LTD.
By: CODINA INVESTMENTS, INC.
its General Partner,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
CODINA WEST DADE DEVELOPMENT
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
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SCHEDULE A
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OWNERSHIP VOTING VOTING
HOLDER UNITS PERCENTAGE PERCENTAGE SHARES PERCENTAGE
------ ----- ---------- ---------- ------ ----------
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
1. NWI Warehouse Group, L.P. 2,685,649 9.922% 36.667% 100,000 0.506%
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
2. NWI XV L.P. 0 -- -- 340 0.000%
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
3. ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.1 0 -- -- 7,298 0.037%
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
4. A. ▇▇▇ ▇▇▇▇▇, ▇▇. 614,079 2.269% 8.383% 246,041 1.25%
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
5. A.R. Weeks, Jr. as Trustee f/b/o 212,663 0.786% 2.903% 0 --
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, A.R. Weeks, Jr.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Weeks and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
6. Weeks Horizon Corp. 116,012 0.429% 1.584% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
7. Weeks Hillside Corp. 78,145 0.289% 1.067% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
8. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 52,817 0.195% 0.721% 55,165 0.280%
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
9. Weeks Southridge Corp. 42,993 0.159% 0.587% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
10. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 28,877 0.107% 0.394% 26,043 0.132%
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
11. HV, Inc. 17,074 0.063% 0.233% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
12. Weeks Management Corp. 1,142 0.004% 0.016% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
13. RTF Management Corp. 257 0.001% 0.004% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
14. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 36,639 0.135% 0.500% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
15. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Family Limited 342,569 1.266% 4.677% 0 --
Partnership
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
16. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 124,523 0.460% 1.700% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
17. Codina Family Investments, Ltd. 30,351 0.112% 0.414% 0 --
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
18. Codina West Dade 117,692 0.435% 1.607% 0 --
Development Corporation
-------------------------------------------- -------------- -------------- -------------- ----------- ---------------
TOTAL 4,501,482 16.701% 61.86% 434,887 2.20%
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1 Includes 1,000 shares held in a 401(k), 1,162 shares held by an ▇▇▇ and
5,127 shares held by a Rollover ▇▇▇.
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