1.4          Restructure of Transaction

Buyer shall have the right in its sole and absolute discretion to revise the structure of the Merger contemplated by this Agreement (including providing for the merger of DMI with and into Buyer) in order to assure that the Merger for federal income tax purposes shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code and that, after giving effect to the Merger, Buyer’s proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code; provided, that no such revision to the structure of the Merger shall result in any changes in the amount or type of the consideration which the holders of shares of DMI Common Stock are entitled to receive under this Agreement.  Buyer may exercise this right of revision by giving written notice to DMI, which notice shall be in the form of an amendment to this Agreement or in the form of an Amended and Restated Agreement and Plan of Merger.

ARTICLE 2 SURVIVING CORPORATION

2.1          Charter.

The Articles of Incorporation of Buyer in effect immediately prior to the Effective Time shall be the Articles of Incorporation of the Surviving Corporation until duly amended or repealed.

2.2          Bylaws.

The Bylaws of Buyer in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation until duly amended or repealed.

2.3          Directors and Officers.

The directors of Buyer in office immediately prior to the Effective Time, together with such additional persons as may thereafter be elected, shall serve as the directors of the Surviving Corporation from and after the Effective Time in accordance with the Bylaws of the Surviving Corporation.  The officers of Buyer in office immediately prior to the Effective Time, together with such additional persons as may thereafter be elected, shall serve as the officers of the Surviving Corporation from and after the Effective Time in accordance with the Bylaws of the Surviving Corporation.

ARTICLE 3 MANNER OF CONVERTING SHARES

At the Effective Time, by virtue of the Merger and without any action on the part of Buyer, DMI or the shareholders of either of the foregoing, the shares of the constituent corporations shall be converted as follows:

(a) Each share of Buyer Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.

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(b) Each share of DMI Common Stock issued and outstanding immediately prior to the Effective Time shall cease to be outstanding and shall be converted into and exchanged for the right to receive 5,013.49 shares of Buyer Common Stock.  Notwithstanding the immediately preceding sentence, to avoid the issuance by Buyer of fractional shares of Buyer Common Stock, DMI and the Stockholders each hereby agree that Buyer’s obligation to deliver shares of Buyer Common Stock in the Merger shall be satisfied in full, and that each such Stockholder hereby irrevocably waives any and all right to receive a fractional number of shares of Buyer Common Stock to the extent applicable, upon the issuance of shares of Buyer Common Stock as follows:

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF DMI

DMI hereby represents and warrants to Buyer as follows:

4.1          Organization, Standing and Power.

DMI is a corporation duly organized and validly existing under the Laws of the State of Indiana.  DMI is duly qualified or licensed to transact business as a foreign corporation in good standing or in existence (as the case may be) in the States of the United States and foreign jurisdictions where the character of its Assets or the nature or conduct of its business requires it to be so qualified or licensed.

4.2          Authority.

(a) DMI has the corporate power and authority necessary to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.  The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated herein, have been duly and validly authorized by all necessary action in respect thereof on the part of DMI.  This Agreement represents a legal, valid, and binding obligation of DMI, enforceable against DMI in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought).

(b) Neither the execution and delivery of this Agreement by DMI, nor the consummation by DMI of the transactions contemplated hereby, nor compliance by DMI with any of the

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provisions hereof, will (i) conflict with or result in a breach of any provision of DMI’s Articles of Incorporation or Bylaws, (ii) constitute or result in a Default under, or require any Consent pursuant to, any Contract or Permit of DMI or (iii) constitute or result in a Default under, or require any Consent pursuant to, any Law or Order applicable to DMI.

(c) Other than the filing of Articles of Merger with the State of Indiana, no notice to, filing with, or Consent of, any public body or authority is necessary for the consummation by DMI of the transactions contemplated in this Agreement.

4.3          No Litigation.

There is no Litigation instituted or pending, or, to the knowledge of, threatened involving DMI or any of its Assets.

4.4          Capitalization.

The authorized capital stock of DMI consists of 1,000 shares of DMI Common Stock, of which 100 shares are outstanding and held of record as follows:

All outstanding shares of DMI have been duly authorized and were issued under available exemptions from applicable Securities Laws. Other than as set forth above, there are no other shares of capital stock or other Equity Rights of DMI outstanding, and there are no agreements or understandings with respect to voting of such shares.

4.5          Registration Rights.

DMI is not under any obligation and has not granted any rights to register under the Securities Act any of its capital stock.

4.6          Compliance with Laws, Other Instruments.

DMI is not in Default under any Laws, Orders or Permits.  DMI is not in Default under any provision of its Articles of Incorporation or Bylaws.  Except for the agreements referred to in this Agreement, DMI is not a party to, or bound by, any written or oral Contracts.

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4.7          Assets; Liabilities.

Except for any Disclosed Items or as specifically contemplated by Section 4.9(d) hereby, the sole Asset owned by DMI is 501,349 units of limited partnership interest in Duke Realty Limited Partnership.  DMI does not lease any Assets nor own any Equity Rights in any Person.  DMI has no Liabilities.  No Lien exists, directly or indirectly, on any Asset of DMI.  For purposes of this Section 4.7, the term “Disclosed Items” shall mean any assets or liabilities of DMI which are disclosed by DMI to Buyer and are accepted by Buyer in writing prior to the Closing.

4.8          Employees.

DMI has no employees and has no Employee Benefit Plans.

4.9          Tax Matters.

(a) DMI has timely filed with the appropriate taxing authorities all tax returns in all jurisdictions in which tax returns are required to be filed, and such tax returns are correct and complete in all respects.  DMI is not the beneficiary of any extension of time within which to file any tax return.  All taxes of any type of DMI (whether or not shown on any tax return) have been fully and timely paid.  There are no liens for any taxes (other than a lien for current real property or ad valorem taxes not yet due and payable) on any of the assets of any of DMI.  No claim has ever been made by an authority in a jurisdiction where DMI does not file a tax return that DMI may be subject to taxes by that jurisdiction.

(b) DMI has not received any notice of assessment or proposed assessment in connection with any taxes, and there are no threatened or pending disputes, claims, audits or examinations regarding any taxes of DMI or the assets of DMI.  No officer of DMI expects any taxing authority to assess any additional taxes for any period for which tax returns have been filed.  DMI has not waived any statute of limitations in respect of any taxes or agreed to a tax assessment or deficiency.

(c) DMI has complied with all applicable laws, rules and regulations relating to the withholding of taxes and the payment thereof to appropriate authorities, including taxes required to have been withheld and paid in connection with amounts paid or owing to any employee or independent contractor, and taxes required to be withheld and paid pursuant to Sections 1441 and 1442 of the Internal Revenue Code.  DMI is in compliance with, and its records contain all information and documents (including properly completed IRS Forms W-9) necessary to comply with, all applicable information reporting and tax withholding requirements under federal, state, and local tax laws, and such records identify with specificity all accounts subject to backup withholding under Section 3406 of the Internal Revenue Code.

(d) The unpaid taxes of DMI (i) did not, as of the most recent fiscal month end, exceed the reserve for tax liability (rather than any reserve for deferred taxes established to reflect timing differences between book and tax income) set forth on the face of its most recent balance sheet (rather than in any notes thereto) and (ii) do not exceed that reserve as adjusted for the

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passage of time through the Closing Date in accordance with past custom and practice of DMI in filing its tax returns.

(e) DMI is not a party to any tax allocation or sharing agreement and is not responsible for tax liabilities of any other person under any federal, state, local or foreign law or as a transferee or successor, by contract or otherwise.

(f) During the five-year period ending on the date hereof, DMI was not a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code.

(g) No closing agreements, private letter rulings, technical advice memoranda or similar agreement or rulings have been entered into or issued by any Tax authority and any of the Target Entities.

(h) None of the shareholders of DMI is a “foreign person” within the meaning of Section 1445 of the Code.

(i) DMI (and any predecessor of DMI) was a validly electing S Corporation within the meaning of Code Sections 1361 and 1362 and, where available, all applicable state income tax laws, for each of its taxable years beginning before January 1, 2005.  DMI has not, in the past ten years, acquired assets from another corporation in a transaction in which its tax basis for the acquired assets was determined, in whole or in part, by reference to the tax basis of the acquired assets (or any other property) in the hands of the transferor.

(j) For its taxable year beginning January 1, 2005, DMI will be organized, and will be operated, in conformity with the requirements for qualification and taxation of the Company as a REIT under the Internal Revenue Code and will elect to be taxed as a REIT for its taxable year beginning January 1, 2005.

(k) At the Closing Date, DMI will not have any positive earnings and profits.  DMI has never had any C corporation earnings and profits.

4.10         Insolvency.

DMI is not subject to any involuntary dissolution or liquidation proceeding.  DMI is not now, and after giving effect to the transactions contemplated by this Agreement will not be, insolvent under any bankruptcy Laws.

ARTICLE 5  REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

Each Stockholder hereby severally, but not jointly, represents and warrants to Buyer as follows:

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5.1          Title.

Such Stockholder owns beneficially and of record, free and clear of any Liens, the shares of DMI Common Stock set forth opposite such Stockholder’s name in Section 4.4 hereof.

5.2          Authority.

Such Stockholder has full right, authority, power and capacity: (a) to enter into this Agreement and each agreement, document and instrument to be executed and delivered by or on behalf of such Stockholder pursuant to this Agreement; and (b) to carry out the transactions contemplated hereby and thereby. This Agreement constitutes the legal, valid and binding obligation of such Stockholder, enforceable in accordance with its respective terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may be brought). The execution, delivery and performance of this Agreement: (y) does not and will not violate any Laws applicable to such Stockholder or require such Stockholder to obtain any Consent of, or make any filing with, any Person or Regulatory Authority; and (z) does not and will not result in a Default under, accelerate any obligation under or give rise to a right of termination of, any Contract, Permit or Order to which such Stockholder is a party.  Prior to the Effective Time, such Stockholder has voted all of his shares of DMI Common Stock in favor of approval of this Agreement, as and to the extent required by applicable Law.

5.3          No Other Agreements to Sell.

Such Stockholder represents that it has made no agreement with, and covenants that it will not enter into any agreement with, and has no obligation (absolute or contingent) to, any other Person to sell, transfer or in any way encumber any of such Stockholder’s shares of DMI Common Stock or to not sell such Stockholder’s shares of DMI Common Stock, or to enter into any agreement with respect to a sale, transfer or encumbrance of or put or call right with respect to such Stockholder’s shares of DMI Common Stock.

5.4          No Brokers.

Such Stockholder represents that it has not entered into, and covenants that it will not enter into, any agreement, arrangement or understanding with any person or firm which will result in the obligation of any Person to pay any finder’s fee, brokerage commission or similar payment in connection with the transactions contemplated hereby.

5.5          Investment Representations and Warranties.

(a) Such Stockholder will be acquiring the shares of Buyer Common Stock to be received by him in the Merger for his own account and not with the view to the sale or distribution of the same or any part thereof in violation of the Securities Act.

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(b) Such Stockholder understands and acknowledges that the shares of Buyer Common Stock to be issued to the Stockholder in the Merger will not be registered under any of the Securities Laws by reason of a specific exemption or exemptions from registration under such Laws.

(c) Such Stockholder understands that, for the reasons set forth in paragraph (b) above, the shares of Buyer Common Stock to be issued in the Merger may not be offered, sold, transferred, pledged, or otherwise disposed of by such Stockholder except (i) pursuant to an effective registration statement under applicable Securities Laws, (ii) pursuant to a no-action letter issued by the Securities and Exchange Commission to the effect that a proposed transfer of the shares of Buyer Common Stock to be issued in the Merger may be made without registration under the Securities Act, together with either registration or an exemption under all other applicable Securities Laws, or (iii) upon the Buyer receiving an opinion of counsel knowledgeable in securities law matters to the effect that the proposed transfer is exempt from the registration requirements of all applicable Securities Laws.  Accordingly, such Stockholder understands that he must bear the economic risk of the shares of Buyer Common Stock to be issued in the Merger for an indefinite period of time.

(d) Such Stockholder is an “accredited investor” within the meaning of Rule 501(a) promulgated under the Securities Act.

(e) Such Stockholder understands that the shares of Buyer Common Stock to be issued in the Merger will bear a legend substantially to the effect of the following:

“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”), or the securities laws of any state. The secur