<PAGE>
As filed with the Securities and Exchange Commission on August 16, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): August 13, 1996
DUKE REALTY INVESTMENTS, INC.
(Exact name of registrant as specified in its charter)
Indiana 1-9044 35-1740409
(State or jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
8888 KEYSTONE CROSSING, SUITE 1200
INDIANAPOLIS, INDIANA 46240
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317) 574-3531
Not applicable
(Former name or former address, if changed since last report)
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed with this report pursuant to Regulation
S-K Item 601(b) in lieu of filing the otherwise required exhibits to the
registration statement on Form S-3 of the Registrant and Duke Realty Limited
Partnership, file no. 33-61361, under the Securities Act of 1933, as amended
(the "Registration Statement"), and which, as this Form 8-K filing is
incorporated by reference in the Registration Statement, is set forth in full in
the Registration Statement.
Exhibit
Number Exhibit
- ------- -------
1 Terms Agreement dated August 13, 1996.
3 Designating Amendment to the Amended and Restated Articles of
Incorporation of Duke Realty Investments, Inc. establishing the
terms of the 9.10% Series A Cumulative Redeemable Preferred
Stock.
4.1 Deposit Agreement dated as of August 13, 1996, by and between
Duke Realty Investments, Inc. and American Stock Transfer & Trust
Co.
4.2 Form of certificate for 9.10% Series A Cumulative Redeemable
Preferred Stock.
4.3 Form of temporary depositary receipt for depositary shares.
5 Opinion of Bose McKinney & Evans, including consent.
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8 Tax Opinion of Bose McKinney & Evans, including consent.
10 Third Amendment to the Amended and Restated Agreement of Limited
Partnership of Duke Realty Limited Partnership.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DUKE REALTY INVESTMENTS, INC.
Date: August 15, 1996 By: /s/ Dennis D. Oklak
------------------------
Dennis D. Oklak
Vice President
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<PAGE>
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
3,000,000 DEPOSITARY SHARES
EACH REPRESENTING 1/10 OF A 9.10% SERIES A CUMULATIVE REDEEMABLE
PREFERRED SHARE (PAR VALUE $0.01 PER SHARE)
(LIQUIDATION PREFERENCE EQUIVALENT TO $25.00 PER DEPOSITARY SHARE)
TERMS AGREEMENT
Dated: August 13, 1996
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that Duke Realty Investments, Inc.,
an Indiana corporation (the "Company"), proposes to issue and sell 3,000,000
depositary shares (the "Depositary Shares") each representing 1/10 of a 9.10%
Series A Cumulative Redeemable Preferred Share, par value $0.01 per share
(collectively, the "Series A Preferred Shares"), of the Company (such Depositary
Shares being collectively hereinafter referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, the underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the respective numbers of Initial
Underwritten Securities (as defined in the Underwriting Agreement referred to
below) set forth below opposite their respective names, and a proportionate
share of Option Securities (as defined in the Underwriting Agreement referred to
below) to the extent any are purchased, at the purchase price set forth below.
<PAGE>
Number of Shares
of the Initial
Underwriter Underwritten Securities
----------- -----------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated . . 715,000
Dean Witter Reynolds Inc.. . . . . . . . . . . . . . . 695,000
A.G. Edwards & Sons, Inc.. . . . . . . . . . . . . . . 695,000
Smith Barney Inc.. . . . . . . . . . . . . . . . . . . 695,000
Alex. Brown & Sons Incorporated. . . . . . . . . . . . 25,000
Dain Bosworth Incorporated . . . . . . . . . . . . . . 25,000
EVEREN Securities, Inc.. . . . . . . . . . . . . . . . 25,000
Legg Mason Wood Walker, Incorporated . . . . . . . . . 25,000
McDonald & Company Securities, Inc.. . . . . . . . . . 25,000
The Ohio Company.. . . . . . . . . . . . . . . . . . . 25,000
Piper Jaffray Inc. . . . . . . . . . . . . . . . . . . 25,000
Prudential Securities Incorporated . . . . . . . . . . 25,000
--------------
Total 3,000,000
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The Underwritten Securities shall have the following terms:
Title of Securities: Depositary Shares Each Representing 1/10 of a 9.10%
Series A Cumulative Redeemable Preferred Share (Par
Value $0.01 Per Share) (Liquidation Preference
Equivalent to $25.00 Per Depositary Share).
Number of Shares: 3,000,000.
Dividend Rate: 9.10% of the liquidation preference per annum
(equivalent to $2.275 per annum per Depositary Share);
Payable quarterly on or about the last day of February,
May, August and November of each year.
Liquidation Preference: $25.00 per Depositary Share.
Ranking: The Underwritten Securities will rank PARI PASSU with
any other preferred shares and will rank senior to the
Common Stock of the Company and any other shares of the
Company ranking junior to the Series A Preferred
Shares.
Public offering price per share: $25.00, plus accrued distributions, if any,
from the date of original issue.
Purchase price per share: $24.2125.
Conversion provisions: The Series A Preferred Shares are not convertible or
exchangeable for any other property or securities of
the Company.
Voting and other rights:If distributions on the Series A Preferred Shares are
in arrears for six or more quarterly periods, whether
or not consecutive, holders of the Underwritten
Securities (voting separately as a class with all other
series of preferred shares upon which like voting
rights have been conferred and are exercisable) will be
entitled to vote for the election of two additional
Directors to serve on the Board of Directors of the
Company until all distribution arrearages are paid.
Number of Option Securities, if any, that may be purchased by the Underwriters:
450,000.
Additional co-managers, if any: Dean Witter Reynolds Inc., A.G. Edwards &
Sons, Inc., and Smith Barney Inc.
Other terms:
Closing time, date and location: August 19, 1996 at the offices of Rogers &
Wells, 200 Park Avenue, New York, New York
10166.
All the provisions contained in the document attached as Annex A hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership --
Common Stock, Preferred Stock, Depositary Shares and Debt Securities
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
2
<PAGE>
Please accept this offer no later than 7 o'clock p.m. (New York City time)
on August 13, 1996 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John P. Case
---------------------------------------------
For themselves and as Representatives of the
other named Underwriters.
Name: John P. Case
Title: Vice President
Accepted:
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
----------------------------
Name: Dennis D. Oklak
Title: Vice President and Treasurer
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.,
General Partner
By: /s/ Dennis D. Oklak
---------------------------
Name: Dennis D. Oklak
Title: Vice President and Treasurer
3
<PAGE>
ARTICLES OF AMENDMENT
OF THE AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
DUKE REALTY INVESTMENTS, INC.
The undersigned officer of DUKE REALTY INVESTMENTS, INC. (the "Corporation"),
existing pursuant to the provisions of INDIANA BUSINESS CORPORATION LAW (IND.
CODE SECTION 23-1 ET SEQ.), AS AMENDED (the "Act") and desiring to give notice
of corporate action effectuating amendment of certain provisions of its Amended
and Restated Articles of Incorporation certify the following facts:
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ARTICLE I - AMENDMENT
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SECTION 1: The date of incorporation of the Corporation is:
MARCH 12, 1992
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SECTION 2: The name of the Corporation following this amendment of its
Amended and Restated Articles of Incorporation is:
DUKE REALTY INVESTMENTS, INC.
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SECTION 3: The exact text to Article VI of the Amended and Restated Articles
of Incorporation is amended to add Section 6.05 as follows:
SEE ATTACHED EXHIBIT A
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This Amendment is to be effective at 12:01a.m. on August 16, 1996.
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ARTICLE II-MANNER OF ADOPTION AND VOTE
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SECTION 1: Action by Directors:
The Board of Directors of the Corporation duly adopted resolutions amending
Article VI of the Amended and Restated Articles
of Incorporation. These resolutions were adopted at meetings duly held on
July 27, 1995, February 1, 1996 and August 6, 1996,
at which quorums were present.
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SECTION 2: Action by Shareholders:
Pursuant to I.C. 23-1-25-2(d), the Shareholders of the Corporation were not
required to vote with respect to this amendment to
the Amended and Restated Articles of Incorporation.
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SECTION 3: Compliance with legal requirements:
The manner of the adoption of the Articles of Amendment and the vote by which
they were adopted constitute full legal compliance with the provisions of the
Act, the Amended and Restated Articles of Incorporation, and the Code of By-Laws
of the Corporation.
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I hereby verify, subject to penalties for perjury, that the facts contained
herein are true this 16th day of August, 1996.
/s/ Dennis D. Oklak
---------------------------------------------
Dennis D. Oklak, Vice President and Treasurer
<PAGE>
EXHIBIT A
6.05. SERIES A PREFERRED STOCK. Pursuant to authority granted under Section
6.01 of the Corporation's Amended and Restated Articles of Incorporation (the
"Articles of Incorporation"), the Board of Directors of the Corporation hereby
establishes a series of preferred shares designated the 9.10% Series A
Cumulative Redeemable Preferred Shares ($0.01 Par Value Per Share) (Liquidation
Preference $250.00 Per Share) (the "Series A Preferred Shares") on the following
terms:
(a) NUMBER. The number of authorized shares of the Series A Preferred
Shares shall be 460,000.
(b) RELATIVE SENIORITY. In respect of rights to receive dividends and to
participate in distributions or payments in the event of any liquidation,
dissolution or winding up of the Corporation, the Series A Preferred Shares
shall rank senior to the Common Shares and any other class or series of shares
of the Corporation ranking, as to dividends and upon liquidation, junior to the
Series A Preferred Shares (collectively, "Junior Shares").
(c) DIVIDENDS.
(1) The holders of the then outstanding Series A Preferred Shares
shall be entitled to receive, when and as declared by the Board of
Directors out of any funds legally available therefor, cumulative dividends
at the rate of $22.75 per share per year, payable in equal amounts of
$5.6875 per share quarterly in cash on the last day of each February, May,
August and November or, if not a Business Day (as hereinafter defined), the
next succeeding Business Day beginning on December 2, 1996 (each such day
being hereinafter called a "Quarterly Dividend Date" and each period ending
on a Quarterly Dividend Date being hereinafter called a "Dividend Period").
Dividends shall be payable to holders of record as they appear in the share
records of the Corporation at the close of business on the applicable
record date (the "Record Date"), which shall be the first day of the
calendar month in which the applicable Quarterly Dividend Date falls on or
such other date designated by the Board of Directors of the Corporation for
the payment of dividends that is not more than 30 nor less than 10 days
prior to such Quarterly Dividend Date. The amount of any dividend payable
for any Dividend Period shorter than a full Dividend Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day
months. Dividends on each share of Series A Preferred Shares shall accrue
and be cumulative from and including the date of original issue thereof,
whether or not (i) dividends on such shares are earned or declared or
(ii) on any Quarterly Dividend Date there shall be funds legally available
for the payment of dividends. Dividends paid on the Series A Preferred
Shares in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
per share basis among all such shares at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City are authorized or required by law, regulation or executive
order to close.
<PAGE>
(2) The amount of any dividends accrued on any Series A Preferred
Shares at any Quarterly Dividend Date shall be the amount of any unpaid
dividends accumulated thereon, to and including such Quarterly Dividend
Date, whether or not earned or declared, and the amount of dividends
accrued on any shares of Series A Preferred Shares at any date other than a
Quarterly Dividend Date shall be equal to the sum of the amount of any
unpaid dividends accumulated thereon, to and including the last preceding
Quarterly Dividend Date, whether or not earned or declared, plus an amount
calculated on the basis of the annual dividend rate of $22.75 per share for
the period after such last preceding Quarterly Dividend Date to and
including the date as of which the calculation is made based on a 360-day
year of twelve 30-day months.
(3) Except as provided in this Section 6.05, the Series A Preferred
Shares shall not be entitled to participate in the earnings or assets of
the Corporation.
(4) Any dividend payment made on the Series A Preferred Shares shall
be first credited against the earliest accrued but unpaid dividend due with
respect to such shares which remains payable.
(5) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Code), any
portion (the "Capital Gains Amount") of the dividends paid or made
available for the year to holders of all classes of Shares (the "Total
Dividends"), then the portion of the Capital Gains Amount that shall be
allocated to the holders of the Series A Preferred Shares shall be the
amount that the total dividends paid or made available to the holders of
the Series A Preferred Shares for the year bears to the Total Dividends.
(d) LIQUIDATION RIGHTS.
(1) Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, the holders of the Series A Preferred Shares
then outstanding shall be entitled to receive and to be paid out of the
assets of the Corporation available for distribution to its shareholders,
before any payment or distribution shall be made on any Junior Shares, the
amount of $250.00 per share, plus accrued and unpaid dividends thereon.
(2) After the payment to the holders of the Series A Preferred Shares
of the full preferential amounts provided for in this Section 6.05, the
holders of the Series A Preferred Shares, as such, shall have no right or
claim to any of the remaining assets of the Corporation.
(3) If, upon any voluntary or involuntary dissolution, liquidation,
or winding up of the Corporation, the amounts payable with respect to the
preference value of the Series A Preferred Shares and any other shares of
the Corporation ranking as to any such distribution on a parity with the
Series A Preferred Shares are not paid in full, the holders of the Series A
Preferred Shares and of such other shares will share ratably in any such
distribution of assets
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<PAGE>
of the Corporation in proportion to the full respective preference amounts
to which they are entitled.
(4) Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger or consolidation of the
Corporation into or with any other entity or the merger or consolidation of
any other entity into or with the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 6.05.
(e) REDEMPTION.
(1) OPTIONAL REDEMPTION. On and after August 31, 2001, the
Corporation may, at its option, redeem at any time all or, from time to
time, part of the Series A Preferred Shares at a price per share (the
"Series A Redemption Price"), payable in cash, of $250.00, together with
all accrued and unpaid dividends to and including the date fixed for
redemption (the "Series A Redemption Date").
(2) PROCEDURES OF REDEMPTION.
(i) Notice of any redemption will be mailed by the Corporation,
postage prepaid, not less than 30 nor more than 60 days prior to the
Series A Redemption Date, addressed to each holder of record of the
Series A Preferred Shares to be redeemed at the address set forth in
the share transfer records of the Corporation. No failure to give
such notice or any defect therein or in the mailing thereof shall
affect the validity of the proceedings for the redemption of any
Series A Preferred Shares except as to the holder to whom the
Corporation has failed to give notice or except as to the holder to
whom notice was defective. In addition to any information required by
law or by the applicable rules of any exchange upon which Series A
Preferred Shares (or depositary shares or receipts representing
fractional interests in Series A Preferred Shares) may be listed or
admitted to trading, such notice shall state: (a) the Series A
Redemption Date; (b) the Series A Redemption Price; (c) the number of
Series A Preferred Shares to be redeemed; (d) the place or places
where certificates for such shares are to be surrendered for payment
of the Series A Redemption Price; and (e) that dividends on the shares
to be redeemed will cease to accumulate on the Series A Redemption
Date.
(ii) If notice has been mailed in accordance with subparagraph
(e)(2)(i) above and provided that on or before the Series A Redemption
Date specified in such notice all funds necessary for such redemption
shall have been irrevocably set aside by the Corporation, separate and
apart from its other funds in trust for the pro rata benefit of the
holders of the Series A Preferred Shares so called for redemption, so
as to be, and to continue to be available therefor, then, from and
after the Series A Redemption Date, dividends on the Series A
Preferred Shares so called for redemption
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<PAGE>
shall cease to accumulate, and said shares shall no longer be deemed
to be outstanding and shall not have the status of Series A Preferred
Shares and all rights of the holders thereof as shareholders of the
Corporation (except the right to receive the Series A Redemption Price)
shall cease. Upon surrender, in accordance with such notice, of the
certificates for any Series A Preferred Shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require
and the notice shall so state), such Series A Preferred Shares shall be
redeemed by the Corporation at the Series A Redemption Price. In case
fewer than all the Series A Preferred Shares represented by any such
certificate are redeemed, a new certificate or certificates shall be
issued representing the unredeemed Series A Preferred Shares without
cost to the holder thereof.
(iii) Any funds deposited with a bank or trust company for
the purpose of redeeming Series A Preferred Shares shall be
irrevocable except that:
(A) the Corporation shall be entitled to receive from such
bank or trust company the interest or other earnings, if any,
earned on any money so deposited in trust, and the holders of any
shares redeemed shall have no claim to such interest or other
earnings; and
(B) any balance of monies so deposited by the Corporation
and unclaimed by the holders of the Series A Preferred Shares
entitled thereto at the expiration of two years from the
applicable Series A Redemption Date shall be repaid, together
with any interest or other earnings earned thereon, to the
Corporation, and after any such repayment, the holders of the
shares entitled to the funds so repaid to the Corporation shall
look only to the Corporation for payment without interest or
other earnings.
(iv) No Series A Preferred Shares may be redeemed except from
proceeds from the sale of other capital stock of the Company,
including but not limited to common stock, preferred stock, depositary
shares, interests, participations or other ownership interests
(however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
(v) Unless full accumulated dividends on all Series A Preferred
Shares shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for
payment for all past Dividend Periods and the then current Dividend
Period, no Series A Preferred Shares shall be redeemed or purchased or
otherwise acquired directly or indirectly (except by conversion into
or exchange for Junior Shares); provided, however, that the foregoing
shall not prevent the redemption of Series A Preferred Shares pursuant
to this Section 6.05 or the purchase or acquisition of Series A
Preferred Shares pursuant to a purchase or
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<PAGE>
exchange offer made on the same terms to holders of all outstanding
shares of Series A Preferred A Shares.
(vi) If the Series A Redemption Date is after a Record Date and
before the related Quarterly Dividend Date, the dividend payable on
such Quarterly Dividend Date shall be paid to the holder in whose name
the Series A Preferred Shares to be redeemed are registered at the
close of business on such Record Date notwithstanding the redemption
thereof between such Record Date and the related Quarterly Dividend
Date or the Corporation's default in the payment of the dividend due.
(vii) In case of redemption of less than all Series A
Preferred Shares at the time outstanding, the Series A Preferred
Shares to be redeemed shall be selected prorata from the holders of
record of such shares in proportion to the number of Series A
Preferred Shares held by such holders (with adjustments to avoid
redemption of fractional shares) or by any other equitable method
determined by the Corporation.
(f) VOTING RIGHTS. Except as required by law, and as set forth below, the
holders of the Series A Preferred Shares shall not be entitled to vote at any
meeting of the shareholders for election of Directors or for any other purpose
or otherwise to participate in any action taken by the Corporation or the
shareholders thereof, or to receive notice of any meeting of shareholders.
(1) Whenever dividends on any Series A Preferred Shares shall be in
arrears for six or more quarterly periods, whether or not such quarterly
periods are consecutive, the holders of such Series A Preferred Shares
(voting separately as a class with all other series of preferred shares
upon which like voting rights have been conferred and are exercisable) will
be entitled to vote for the election of two additional Directors of the
Corporation at a special meeting called by the holders of Record of at
least ten percent (10%) of any series of preferred shares so in arrears
(unless such request is received less than 90 days before the date fixed of
for the next annual or special meeting of the shareholders) or at the next
annual meeting of shareholders, and at each subsequent annual meeting until
all dividends accumulated on such Series A Preferred Shares for the past
dividend periods and the then current dividend period shall have been fully
paid or declared and a sum sufficient for the payment thereof set aside for
payment. In such case, the entire Board of Directors of the Corporation
will be increased by two Directors.
(2) So long as any Series A Preferred Shares remain outstanding, the
Corporation will not, without the affirmative vote or consent of the
holders of at least two-thirds of the Series A Preferred Shares outstanding
at the time, given in person or by proxy, either in writing or at a meeting
(such series voting separately as a class), (i) authorize or create, or
increase the authorized or issued amount of, any class or series of shares
of beneficial interest ranking prior to the Series A Preferred Shares with
respect to the payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized shares
of the Corporation into such shares, or create, authorize or issue any
obligation or
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<PAGE>
security convertible into or evidencing the right to purchase any such
shares; or (ii) amend, alter or repeal the provisions of the Corporation's
Articles of Incorporation, whether by merger, consolidation or otherwise
(an "Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Shares or
the holders thereof; provided, however, with respect to the occurrence of
any of the Events set forth in (ii) above, so long as the Series A
Preferred Shares remain outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence of an Event, the
Corporation may not be the surviving entity, the occurrence of any such
Event shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of Series A Preferred
Shares and provided further that (x) any increase in the amount of the
authorized Preferred Shares or the creation or issuance of any other Series
A Preferred Shares, or (u) any increase in the amount of authorized Series
A Preferred Shares or any other preferred shares, in each case ranking on a
parity with or junior to the Series A Preferred Shares with respect to
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding Series A Preferred Shares shall
have been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
(3) On each matter submitted to a vote of the holders of Series A
Preferred Shares in accordance with this Section 6.05, or as otherwise
required by law, each Series A Preferred Share shall be entitled to ten
(10) votes, each of which ten (10) votes may be directed separately by the
holder thereof. With respect to each Series A Preferred Share, the holder
thereof may designate up to ten (10) proxies, with each such proxy having
the right to vote a whole number of votes (totaling ten (10) votes per
Series A Preferred Share).
(g) CONVERSION. The Series A Preferred Shares are not convertible into or
exchangeable for any other property or securities of the Corporation.
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<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of August 13, 1996, among DUKE REALTY
INVESTMENTS, INC., an Indiana corporation (the "Company") and American Stock
Transfer & Trust Co., a New York banking corporation, as Depositary, and all
holders from time to time of Receipts (as hereinafter defined) issued hereunder.
W I T N E S S E T H:
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of the Company's Preferred Shares (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Shares
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
SECTION 1.1 "ARTICLES OF INCORPORATION" shall mean the Amended and
Restated Articles of Incorporation, as amended from time to time, of the
Company.
SECTION 1.2 "COMPANY" shall mean Duke Realty Investments, Inc., an
Indiana corporation, and its successors.
SECTION 1.3 "CORPORATE OFFICE" shall mean the corporate office of
the Depositary at which at any particular time its business in respect of
matters governed by this Deposit Agreement shall be administered, which at the
date of this Deposit Agreement is located at 40 Wall Street, New York, NY 10005.
SECTION 1.4 "DEPOSIT AGREEMENT" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
<PAGE>
SECTION 1.5 "DEPOSITARY" shall mean American Stock Transfer & Trust
Co., a company having its principal office in the United States and having a
combined capital and surplus of at least $10,000,000, and any successor as
depositary hereunder.
SECTION 1.6 "DEPOSITARY SHARE" shall mean a fractional interest of
1/10 of a Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Preferred Share and held under this Deposit Agreement, all as
evidenced by the Receipts issued hereunder. Subject to the terms of this
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Share represented by such Depositary Share, including the dividend, voting,
redemption, conversion and liquidation rights contained in the Designating
Amendment.
SECTION 1.7 "DEPOSITARY'S AGENT" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.5.
SECTION 1.8 "DESIGNATING AMENDMENT" shall mean the amendment to the
Articles of Incorporation filed with the Secretary of State of the State of
Indiana establishing the Preferred Shares as a series of preferred shares of the
Company.
SECTION 1.9 "PREFERRED SHARES" shall mean the Company's 9.01%
Series A Cumulative Redeemable Preferred Shares, par value $0.01 per share,
heretofore validly issued, fully paid and nonassessable.
SECTION 1.10 "RECEIPT" shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.11 "RECORD DATE" shall mean the date fixed pursuant to
Section 4.4.
SECTION 1.12 "RECORD HOLDER" OR "HOLDER" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the books
maintained by the Depositary for such purpose.
SECTION 1.13 "REGISTRAR" shall mean American Stock Transfer & Trust
Co. or any bank or trust company appointed to register ownership and transfers
of Receipts or the deposited Preferred Shares, as the case may be, as herein
provided.
SECTION 1.14 "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended.
SECTION 1.15 "TRANSFER AGENT" shall mean American Stock Transfer &
Trust Co. or any bank or trust company appointed to transfer the Receipts or the
deposited Preferred Shares, as the case may be, as herein provided.
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ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS. Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.2, shall execute and deliver temporary
Receipts which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at the Corporate Office or such other
offices, if any, as the Depositary may designate, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Preferred Shares deposited, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, PROVIDED
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding sentence. The
Depositary shall record on its books each Receipt executed as provided above and
delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Shares, the Depositary Shares or
the Receipts may be listed or to conform with any usage with respect
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thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt), that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; PROVIDED, HOWEVER, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2 DEPOSIT OF PREFERRED SHARES; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Concurrently with the execution of this Deposit
Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing [460,000]
Preferred Shares, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as may
be required by the Depositary in accordance with the provisions of this Deposit
Agreement and (ii) a written order of the Company directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Shares. The Depositary acknowledges
receipt of the deposited Preferred Shares and related documentation and agrees
to hold such deposited Preferred Shares in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine. The Company hereby appoints the Depositary as the Registrar
and Transfer Agent for Preferred Shares deposited hereunder and the Depositary
hereby accepts such appointment and, as such, will reflect changes in the number
of shares (including any fractional shares) of deposited Preferred Shares held
by it by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Shares presented for deposit
by the Company at any time, whether or not the register of shareholders of the
Company is closed, shall also be accompanied by an agreement or assignment, or
other instrument satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or right to
subscribe for additional Preferred Shares or to receive other property that any
person in whose name the Preferred Shares is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares in the name of the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to, or upon the order of, the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2, a Receipt or Receipts for the number of
whole Depositary Shares
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representing the Preferred Shares so deposited and registered in such name or
names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Corporate Office, except
that, at the request, risk and expense of any person requesting such delivery,
such delivery may be made at such other place as may be designated by such
person.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends or
other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Shares
as set forth in the Designating Amendment, as such may be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.3 OPTIONAL REDEMPTION OF PREFERRED SHARES FOR CASH.
Whenever the Company shall elect to redeem deposited Preferred Shares for cash
in accordance with the provisions of the Designating Amendment, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 60 days' prior written notice of the date of such proposed redemption and
of the number of such Preferred Shares held by the Depositary to be redeemed and
the applicable redemption price, as set forth in the Designating Amendment,
including the amount, if any, of accrued and unpaid dividends to the date of
such redemption. The Depositary shall mail, first-class postage prepaid, notice
of the redemption of Preferred Shares and the proposed simultaneous redemption
of the Depositary Shares representing the Preferred Shares to be redeemed, not
less than 30 and not more than 60 days prior to the date fixed for redemption of
such Preferred Shares and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the
proceedings for redemption as to other holders. The Company shall provide the
Depositary with such notice, and each such notice shall state: the cash
redemption date; the cash redemption price; the number of deposited Preferred
Shares and Depositary Shares to be redeemed; if fewer than all the Depositary
Shares held by any holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; the place or places where Receipts
evidencing Depositary Shares to be redeemed are to be surrendered for payment of
the cash redemption price; and that from and after the cash redemption date
dividends in respect of the Preferred Shares represented by the Depositary
Shares to be redeemed will cease to accrue. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall
be selected pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by any other equitable method determined by the
Company. The Company shall also cause notice of redemption to be published in a
newspaper of general circulation in The City of New York at least once a week
for two successive weeks commencing not less than 30 nor more than 60 days prior
to the cash redemption date.
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In the event that notice of redemption has been made as described in
the immediately preceding paragraph and the Company shall then have paid in full
to the Depositary the cash redemption price (determined pursuant to the
Designating Amendment) of the Preferred Shares deposited with the Depositary to
be redeemed (including any accrued and unpaid dividends to the date of
redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Shares so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the Preferred Shares to be redeemed by it as set forth in the Company's
notice provided for in the preceding paragraph), all dividends in respect of the
Preferred Shares called for redemption shall cease to accrue, the Depositary
Shares called for redemption shall be deemed no longer to be outstanding and all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the cash redemption price and any money or other property to
which holders of such Receipts were entitled upon such redemption) shall, to the
extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed at a cash redemption price of
$25.00 per Depositary Share plus any other money and other property payable in
respect of such Preferred Shares. The foregoing shall be further subject to the
terms and conditions of the Designating Amendment.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
SECTION 2.4 REGISTRATION OF TRANSFERS OF RECEIPTS. The Company
hereby appoints the Depositary as the Registrar and Transfer Agent for the
Receipts and the Depositary hereby accepts such appointment and, as such, shall
register on its books from time to time transfers of Receipts upon any surrender
thereof by the holder in person or by a duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer or
endorsement, together with evidence of the payment of any transfer taxes as may
be required by law. Upon such surrender, the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
SECTION 2.5 COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon surrender
of a Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6 SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED
SHARES. Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Shares represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and
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other property, if any, represented by such Depositary Shares by surrendering
such Receipt or Receipts at the Corporate Office or at such office as the
Depositary may designate for such withdrawals, PROVIDED that a holder of a
Receipt or Receipts may not withdraw such Preferred Shares (or money and other
property, if any, represented thereby) which has previously been called for
redemption. After such surrender, without unreasonable delay, the Depositary
shall deliver to such holder, or to the person or persons designated by such
holder as hereinafter provided, the number of whole or fractional shares of such
Preferred Shares and all such money and other property, if any, represented by
the Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole or fractional Preferred Shares will not
thereafter be entitled to deposit such Preferred Shares hereunder or to receive
Depositary Shares therefor. If the Receipt or Receipts delivered by the holder
to the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole or fractional shares of deposited Preferred Shares to be
withdrawn, the Depositary shall at the same time, in addition to such number of
whole or fractional Preferred Shares and such money and other property, if any,
to be withdrawn, deliver to such holder, or (subject to Section 2.4) upon his
order, a new Receipt or Receipts evidencing such excess number of Depositary
Shares. Delivery of such Preferred Shares and such money and other property
being withdrawn may be made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by proper
instruments of transfer.
If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Shares, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such Preferred Shares be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Shares and the
money and other property, if any, represented by the Depositary Shares evidenced
by Receipts surrendered for withdrawal at the Corporate Office, except that, at
the request, risk and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such delivery may be made at
such other place as may be designated by such holder.
SECTION 2.7 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SPLIT-
UP, COMBINATION, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent
to the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Shares being deposited or withdrawn); (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature (or the authority of any signature); and (iii) compliance with such
regulations, if any, as the Depositary or the Company may establish
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consistent with the provisions of this Deposit Agreement as may be required by
any securities exchange upon which the deposited Preferred Shares, the
Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts may
be refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period when
the register of shareholders of the Company is closed or (ii) if any such action
is deemed reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under Article X of the Articles of Incorporation or under any provision of
this Deposit Agreement.
SECTION 2.8 LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary, in its discretion, may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, PROVIDED that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.9 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person presenting Preferred Shares for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Shares represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof, until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.2 PAYMENT OF FEES AND EXPENSES. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.7, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Until such payment is made, transfer of any Receipt or any
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withdrawal of the Preferred Shares or money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused,
any dividend or other distribution may be withheld, and any part or all of the
Preferred Shares or other property represented by the Depositary Shares
evidenced by such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder a reasonable number
of days prior to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES AS TO PREFERRED SHARES.
In the case of the initial deposit of the Preferred Shares hereunder, the
Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Shares under this Deposit Agreement shall be deemed thereby
to represent and warrant that such Preferred Shares and each certificate
therefor are valid and that the person making such deposit is duly authorized to
do so. The Company hereby further represents and warrants that such Preferred
Shares, when issued, will be validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred Shares
and the issuance of Receipts.
SECTION 3.4 REPRESENTATION AND WARRANTY AS TO RECEIPTS AND
DEPOSITARY SHARES. The Company hereby represents and warrants that the
Receipts, when issued, will evidence legal and valid interests in the Depositary
Shares and each Depositary Share will represent a legal and valid 1/10
fractional interest in a deposited Preferred Share. Such representation and
warranty shall survive the deposit of the Preferred Shares and the issuance of
Receipts evidencing the Depositary Shares.
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.1 CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the deposited Preferred
Shares, including any cash received upon redemption of any Preferred Shares
pursuant to Section 2.3, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of such sum as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; PROVIDED, HOWEVER, that in case the Company or
the Depositary shall be required to and shall withhold from any cash dividend or
other cash distribution in respect of the Preferred Shares represented by the
Receipts held by any holder an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares
represented by such Receipts subject to such withholding shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Receipts a fraction of one
cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
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SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution other than cash on the deposited Preferred
Shares, the Depositary shall, subject to Section 3.2, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Depositary after consultation with
the Company, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes), the Depositary deems,
after consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.1
in the case of a distribution received in cash. The Company shall not make any
distribution of such securities or property to the holders of Receipts unless
the Company shall have provided to the Depositary an opinion of counsel stating
that such securities or property have been registered under the Securities Act
or do not need to be registered.
SECTION 4.3 SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Preferred Shares are registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts in such manner as the Company shall
instruct (including by the issue to such record holders of warrants representing
such rights, preferences or privileges); PROVIDED, HOWEVER, that (a) if at the
time of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible to
make such rights, preferences or privileges available to the holders of Receipts
(by the issue of warrants or otherwise) or (b) if and to the extent instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if so instructed by the Company, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2,
be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.1 in the case of a distribution received in
cash. The Company shall not make any distribution of such rights, preferences
or privileges, unless the Company shall have provided to the Depositary an
opinion of counsel stating that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold
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the securities to which such rights, preferences or privileges relate, the
Company agrees that it will promptly file a registration statement pursuant to
the Securities Act with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available to it to cause
such registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such a
registration statement shall have become effective or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees to use its best efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.4 NOTICE OF DIVIDENDS; FIXING OF RECORD DATE FOR HOLDERS
OF RECEIPTS. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Preferred Shares, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Shares are entitled to vote
or of which holders of such Preferred Shares are entitled to notice or (ii) any
election on the part of the Company to redeem any such Preferred Shares, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Shares) for the determination of the holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or whose
Depositary Shares are to be so redeemed.
SECTION 4.5 VOTING RIGHTS. Upon receipt of notice of any meeting
at which the holders of deposited Preferred Shares are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.4 will be entitled, subject to any
applicable provision of law, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Preferred Shares represented by
their respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall vote or cause to be voted
the amount of Preferred Shares represented by the Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. To
the extent such instructions request the voting of a fractional interest of a
share of deposited Preferred Shares, the Depositary shall aggregate such
interest with all other fractional interests resulting from requests
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with the same voting instructions and shall vote the number of whole votes
resulting from such aggregation in accordance with the instructions received in
such requests. Each Preferred Share is entitled to 10 votes and, accordingly,
each Depositary Share is entitled to one vote. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Preferred Shares or cause such
Preferred Shares to be voted. In the absence of specific instructions from the
holder of a Receipt, the Depositary will abstain from voting to the extent of
the Preferred Shares represented by the Depositary Shares evidenced by such
Receipt. The Depositary shall not be required to exercise discretion in voting
any Preferred Shares represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.6 CHANGES AFFECTING PREFERRED SHARES AND
RECLASSIFICATIONS, RECAPITALIZATION, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of Preferred Shares,
or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company: (i) make such adjustments in (a) the fraction of
an interest represented by one Depositary Share in one Preferred Share and (b)
the ratio of the redemption price per Depositary Share to the redemption price
of a Preferred Share, in each case as may be required by or as is consistent
with the provisions of the Designating Amendment to fully reflect the effects of
such change in liquidation value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Preferred Shares as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof or the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Shares. In any such case the Depositary may, in its
discretion, with approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Preferred Shares
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the assets of the Company to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Preferred Shares represented thereby only into or for, as the
case may be, the kind and amount of shares and other securities and property and
cash into which the deposited Preferred Shares evidenced by such Receipts might
have been converted or for which such Preferred Shares might have been exchanged
or surrendered immediately prior to the effective date of such transaction. The
Company shall cause effective provision to be made in the charter of the
resulting or surviving corporation (if other than the Company) for protection of
such rights as may be applicable upon exchange of the deposited Preferred Shares
for securities or property or cash of the surviving corporation in connection
with the transactions set forth above. The Company shall cause any such
surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.
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SECTION 4.7 INSPECTION OF REPORTS. The Depositary shall make
available for inspection by holders of Receipts at the Corporate Office and at
such other places as it may from time to time deem advisable during normal
business hours any reports and communications received from the Company that are
both received by the Depositary as the holder of deposited Preferred Shares and
made generally available to the holders of the Preferred Shares. In addition,
the Depositary shall transmit certain notices and reports to the holders of
Receipts as provided in Section 5.5.
SECTION 4.8 LISTS OF RECEIPT HOLDERS. Promptly upon request from
time to time by the Company, the Depositary shall furnish to the Company a list,
as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.9 TAX AND REGULATORY COMPLIANCE. The Depositary shall be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31% (or any
withholding as may be required at the then applicable rate) of dividends from
eligible holders of Receipts if directed to do so by the Company or required to
do so by applicable law, (iv) mailing W-9 forms to new holders of Receipts
without a certified taxpayer identification number, (v) processing certified W-9
forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.
SECTION 4.10 WITHHOLDING. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY AND THE REGISTRAR. The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Shares and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Shares, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such
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books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed on the
New York Stock Exchange, Inc. or any other stock exchange, the Depositary may,
with the approval of the Company, appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with the requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Shares are listed on one or more other stock exchanges, the Depositary
will, at the request and expense of the Company, arrange such facilities for the
delivery, transfer, surrender, redemption and exchange of such Receipts, such
Depositary Shares or such Preferred Shares as may be required by law or
applicable stock exchange regulations.
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary,
any Depositary's Agent, any Registrar nor the Company shall incur any liability
to any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, the Depositary's
Agent or the Registrar, by reason of any provision, present or future, of the
Articles of Incorporation or the Designating Amendment or, in the case of the
Company, the Depositary, the Depositary's Agent or the Registrar, by reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, the Depositary's Agent, the Registrar or the Company
shall be prevented or forbidden from doing or performing any act or thing that
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the Company incur
any liability to any holder of a Receipt by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing that the
terms of this Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement.
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. Neither the Depositary, any Depositary's Agent,
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad faith,
negligence (in the case of any action or inaction with respect to the voting of
the deposited Preferred Shares), gross negligence or willful misconduct in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Shares,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability unless indemnity reasonably satisfactory to it against all
expense and liability be furnished as often as may be required.
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Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Preferred Shares for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to the
full indemnification set forth in Section 5.6 hereof in connection with any
action so taken.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the deposited Preferred Shares or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any
Depositary's Agent, and any Registrar may own, buy, sell or deal in any class of
securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary's Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the deposited Preferred Shares; PROVIDED,
HOWEVER, that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
The Company agrees that it will register the deposited Preferred
Shares and the Depositary Shares if required by the applicable securities laws.
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the
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appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Shares and any moneys
or property held hereunder to such successor and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the record holders
of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5 NOTICES, REPORTS AND DOCUMENTS. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Shares, the Depositary Shares or
the Receipts are included for quotation or listed or by the Articles of
Incorporation and the Designating Amendment to be furnished by the Company to
holders of the deposited Preferred Shares and, if requested by the holder of any
Receipt, a copy of this Deposit Agreement, the form of Receipt, the Designating
Amendment and the form of Preferred Shares. Such transmission will be at the
Company's expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the record holders of Receipts at the
Company's expense such other documents as may be requested by the Company.
SECTION 5.6 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of
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them harmless from, any liability, costs and expenses (including reasonable
attorneys' fees) that may arise out of, or in connection with, its acting as
Depositary, Depositary's Agent or Registrar, respectively, under this Deposit
Agreement and the Receipts, except for any liability arising out of the willful
misconduct, gross negligence, negligence (in the case of any action or inaction
with respect to the voting of the deposited Preferred Shares) or bad faith on
the part of any such person or persons. The obligations of the Company set
forth in this Section 5.6 shall survive any succession of any Depositary,
Registrar or Depositary's Agent or termination of this Deposit Agreement.
SECTION 5.7 FEES, CHARGES AND EXPENSES. No charges and expenses of
the Depositary or any Depositary's Agent hereunder shall be payable by any
person, except as provided in this Section 5.7. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of this Deposit Agreement. The Company shall also pay all fees and
expenses of the Depositary in connection with the initial deposit of the
Preferred Shares and the initial issuance of the Depositary Shares evidenced by
the Receipts, any redemption of the Preferred Shares at the option of the
Company and all withdrawals of the Preferred Shares by holders of Depositary
Shares. If a holder of Receipts requests the Depositary to perform duties not
required under this Deposit Agreement, the Depositary shall notify the holder of
the cost of the performance of such duties prior to the performance thereof.
Such holder will be liable for the charges and expenses related to such
performance. All other fees and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be promptly paid as previously agreed between the Depositary and
the Company. The Depositary shall present its statement for fees and expenses
to the Company every month or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 AMENDMENT. The form of the Receipts and any provision
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the holders of
Receipts or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Preferred Shares pursuant to the Designating
Amendment shall be effective unless such amendment shall have been approved by
the holders of at least a majority of the Depositary Shares then outstanding.
In no event shall any amendment impair the right, subject to the provisions of
Section 2.6 and Section 2.7 and Article III, of any holder of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the deposited Preferred
Shares and all money and other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment
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becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by this Deposit Agreement as
amended thereby.
SECTION 6.2 TERMINATION. This Deposit Agreement may be terminated
by the Company upon not less than 30 days' prior written notice to the
Depositary if (i) such termination is necessary to preserve the Company's status
as a real estate investment trust under the Internal Revenue Code of 1986, as
amended (or any successor provisions) or (ii) the holders of a majority of the
Preferred Shares consent to such termination, whereupon the Depositary shall
deliver or make available to each holder of a Receipt, upon surrender of the
Receipt held by such holder, such number of whole or fractional shares of
deposited Preferred Shares that are represented by the Depositary Shares
evidenced by such Receipt, together with any other property held by the
Depositary in respect of such Receipt. In the event that this Deposit Agreement
is terminated pursuant to clause (i) of the immediately preceding sentence, the
Company hereby agrees to use its best efforts to list the Preferred Shares
issued upon surrender of the Receipt evidencing the Depositary Shares
represented thereby on a national securities exchange. This Deposit Agreement
will automatically terminate if (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the deposited Preferred Shares in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.2 EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
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SECTION 7.3 INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at:
DUKE REALTY INVESTMENTS, INC.
8888 Keystone Crossing
Suite 1200
Indianapolis, Indiana 46240
Attention: Dennis D. Oklak
Telephone No.: (317) 574-3531
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or telex or telecopier message received by it from the other or from any holder
of a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.5 DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
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SECTION 7.6 HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.7 GOVERNING LAW. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the law of the State of New
York applicable to agreements made and to be performed in said State.
SECTION 7.8 INSPECTION OF DEPOSIT AGREEMENT AND DESIGNATING
AMENDMENT. Copies of this Deposit Agreement and the Designating Amendment shall
be filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of any Receipt.
SECTION 7.9 HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, Duke Realty Investments, Inc. and American Stock
Transfer & Trust Co. have duly executed this Deposit Agreement as of the day and
year first above set forth and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
--------------------------------
Attest: Donna Coppinger Authorized Officer
AMERICAN STOCK TRANSFER & TRUST CO.
By: /s/ Herbert J. Lemmer
--------------------------------
Attest: George Karfunkel Authorized Signatory
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Articles of Incorporation. . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Common Shares. . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3 Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.4 Corporate Office . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.5 Deposit Agreement. . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.6 Depositary . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.7 Depositary Share . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.8 Depositary's Agent . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.9 Designating Amendment. . . . . . . . . . . . . . . . . . . . 2
SECTION 1.10 Preferred Shares . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.11 Receipt. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.12 record date. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.13 record holder or holder. . . . . . . . . . . . . . . . . . . 2
SECTION 1.14 Registrar. . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.15 Securities Act . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.16 Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts . . . . . . . . . . . . 3
SECTION 2.2 Deposit of Preferred Shares; Execution and Delivery of Receipts
in Respect Thereof . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 Optional Redemption of Preferred Shares for Cash . . . . . . 5
SECTION 2.4 Registration of Transfers of Receipts. . . . . . . . . . . . 6
SECTION 2.5 Combinations and Split-ups of Receipts . . . . . . . . . . . 6
SECTION 2.6 Surrender of Receipts and Withdrawal of Preferred Shares . . 7
SECTION 2.7 Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. . . . . . . 7
SECTION 2.8 Lost Receipts, etc.. . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts . . . . 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
i
<PAGE>
Page
----
SECTION 3.1 Filing Proofs, Certificates and Other Information. . . . . . 8
SECTION 3.2 Payment of Fees and Expenses . . . . . . . . . . . . . . . . 9
SECTION 3.3 Representations and Warranties as to Preferred Shares. . . . 9
SECTION 3.4 Representation and Warranty as to Receipts and Depositary
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
THE PREFERRED SHARES; NOTICES
SECTION 4.1 Cash Distributions . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.2 Distributions Other Than Cash. . . . . . . . . . . . . . . . 10
SECTION 4.3 Subscription Rights, Preferences or Privileges . . . . . . . 10
SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.5 Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.6 Changes Affecting Preferred Shares and Reclassifications,
Recapitalization, etc. . . . . . . . . . . . . . . . . . . 12
SECTION 4.7 Inspection of Reports. . . . . . . . . . . . . . . . . . . . 13
SECTION 4.8 Lists of Receipt Holders . . . . . . . . . . . . . . . . . . 13
SECTION 4.9 Tax and Regulatory Compliance. . . . . . . . . . . . . . . . 13
SECTION 4.10 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar . . . . . . . . . . . . . . . 13
SECTION 5.2 Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. . . . . 14
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. . . . . . . . . . . . . . . . . 14
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary . . . . . . . . . . . . . . . . . . . 16
SECTION 5.5Notices, Reports and Documents 17
SECTION 5.6 Indemnification by the Company . . . . . . . . . . . . . . . 17
SECTION 5.7 Fees, Charges and Expenses . . . . . . . . . . . . . . . . . 17
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.2 Termination. . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
ii
<PAGE>
Page
----
MISCELLANEOUS
SECTION 7.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.2 Exclusive Benefit of Parties . . . . . . . . . . . . . . . . 19
SECTION 7.3 Invalidity of Provisions . . . . . . . . . . . . . . . . . . 19
SECTION 7.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.5 Depositary's Agents. . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.6 Holders of Receipts Are Parties. . . . . . . . . . . . . . . 20
SECTION 7.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.8 Inspection of Deposit Agreement and Designating Amendment. . 20
SECTION 7.9 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iii
<PAGE>
EXHIBIT A
The Depositary Shares evidenced by this Depositary Receipt are subject
to restrictions on ownership and transfer for the purpose of the Company's
maintenance of its status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended. In order to maintain such status, the
Company's Designating Amendment imposes limitations on the number of Series A
Cumulative Redeemable Preferred Shares that may be owned by any single person or
affiliated group. All capitalized terms in this legend have the meanings
defined in the Company's Designating Amendment for the Series A Cumulative
Redeemable Preferred Shares. Transfers in violation of the restrictions
described above shall be void AB INITIO.
The Company will furnish to the holder hereof upon request and without
charge a complete written statement of the terms and conditions of the Series A
Cumulative Redeemable Preferred Shares. Requests for such statement may be
directed to the Secretary of the Company.
[FORM OF FACE OF RECEIPT]
DR-
CERTIFICATE FOR NOT MORE THAN [4,600,000] DEPOSITARY SHARES
CUSIP____________
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/10 OF A SERIES A CUMULATIVE
REDEEMABLE PREFERRED SHARE
DUKE REALTY INVESTMENTS, INC.
(an Indiana corporation)
_______________, as Depositary (the "Depositary"), hereby certifies
that ____________________ is the registered owner of ____________ DEPOSITARY
SHARES ("Depositary Shares"), each Depositary Share representing 1/10 of one
Series A Cumulative Redeemable Preferred Share, $0.01 par value per share (the
"Shares"), of Duke Realty Investments, Inc., an Indiana corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled to
the benefits of the Deposit Agreement dated as of ____________ ___, 1996 (the
"Deposit Agreement"), among the Company, the Depositary and the holders from
time to time of Receipts for Depositary Shares. By accepting this Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in respect
of the Receipts (other than the Depositary) shall have been appointed, by the
manual signature of a duly authorized officer of such Registrar.
Dated:
[Countersigned:
-----------------------
By: ] By:
-------------------- --------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE RECEIPT]
DUKE REALTY INVESTMENTS, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO THE SERIES A CUMULATIVE
REDEEMABLE PREFERRED SHARES OF DUKE REALTY INVESTMENTS, INC. ANY SUCH REQUEST
SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
-------------------------
The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - ________ Custodian ________
(Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with
right of survivorship
and not as tenants
in common _______________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, ____________ hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------
------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
------------------------------------
____________ Depositary Shares represented by the within Receipt, and do hereby
irrevocably constitute and appoint ____________ Attorney to transfer the said
Depositary Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated:
------------------------ ------------------------------------------
NOTICE: The signature to the assignment
must correspond with the name as written
upon the face of this Receipt in every
particular, without alteration or
enlargement or any change whatever.
<PAGE>
9.10% SERIES A
CUMULATIVE
REDEEMABLE PREFERRED
SHARES
CUSIP 264411 70 3
NUMBER
PA
DUKE REALTY INVESTMENTS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF INDIANA
THIS CERTIFIES that is the owner of 9.10%
SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES ($.01 par value; $250
liquidation preference) of DUKE REALTY INVESTMENTS, INC. (the "Company") fully
paid, not liable to any further call or assessment, and transferable only on
the books of the Company by the holder hereof in person or by attorney upon
surrender of this certificate properly endorsed. This certificate is not valid
unless countersigned and registered by the Transfer Agent.
IN WITNESS WHEREOF, the Company has caused this certificate to be signed by its
duly authorized officers.
DATED:
/s/ John R. Gaskin /s/ Thomas L. Hefner
- ---------------------------------- -------------------------------
John R. Gaskin, Secretary Thomas L. Hefner, President
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, N.Y.)
By:
- ----------------------------------
Authorized Officer
DUKE REALTY INVESTMENTS, INC.
IF NECESSARY TO EFFECT COMPLIANCE BY THE COMPANY WITH REQUIREMENTS OF THE
INTERNAL REVENUE CODE RELATING TO REAL ESTATE INVESTMENT TRUSTS, THE RIGHTS
OF ANY HOLDER OF 9.10% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES MAY
BE RESTRICTED BY THE COMPANY AND/OR THE TRANSFER THEREOF MAY BE PROHIBITED
UPON THE TERMS AND CONDITIONS SET FORTH IN THE COMPANY'S ARTICLES OF
INCORPORATION. THE COMPANY WILL FURNISH TO THE REGISTERED HOLDER OF THIS
CERTIFICATE, UPON REQUEST AND WITHOUT CHARGE, A COPY OF SUCH TERMS
AND CONDITIONS, A STATEMENT OF ALL THE POWERS, DESIGNATIONS, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK ISSUED BY THE
COMPANY AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS, AND A COPY OF THE DESIGNATING AMENDMENT WITH
RESPECT TO THE 9.10% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES.
REQUESTS FOR SUCH COPIES MAY BE DIRECTED TO THE SECRETARY OF THE COMPANY.
<PAGE>
The following abbreviations when used in the instructions on the face of
this Certificate shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian
---------- ----------
TEN ENT - as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants
with right of
survivorship and
not as tenants
in common ---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, hereby
--------------------------------------------
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OR
ASSIGNEE)
- --------------------------------------------------------------------------------
- ----------------------------------------------- Preferred Shares represented by
the within Certificate, and do hereby irrevocably constitute and appoint
-------
- ----------------------------------------- Attorney to transfer the said
Preferred Shares on the books of the Company with full power of substitution in
the premises.
Dated:
----------------------------- ---------------------------------------
Notice: The signature to the
assignment must correspond
with the name as written upon
the face of this Certificate
in every particular, without
alteration or enlargement or
any change whatever.
<PAGE>
[FORM OF FACE OF RECEIPT]
TEMPORARY CERTIFICATE -- EXCHANGEABLE FOR ENGRAVED CERTIFICATE WHEN READY FOR
DELIVERY
NUMBER DEPOSITARY SHARES
DR- CUSIP 264411 60 4
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING A 1/10 INTEREST IN ONE
9.10% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARE
OF
DUKE REALTY INVESTMENTS, INC.
(an Indiana corporation)
AMERICAN STOCK TRANSFER & TRUST CO., as Depositary (the "Depositary"), hereby
certifies that
IS THE REGISTERED OWNER OF
-----------------------------------------------------
DEPOSITARY SHARES ("Depositary Shares"),
each Depositary Share representing 1/10 of one 9.10% Series A Cumulative
Redeemable Preferred Share, $0.01 par value per share, of Duke Realty
Investments, Inc., an Indiana corporation (the "Company"), on deposit with the
Depositary, subject to the terms and entitled to the benefits of the Deposit
Agreement dated as of August 13, 1996 (the "Deposit Agreement"), among the
Company, the Depositary and the holders from time to time of Receipts for
Depositary Shares. By accepting this Receipt, the holder hereof becomes a party
to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any purpose or
entitled to any benefit under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer or, if a Registrar in respect of the Receipts (other than the
Depositary) shall have been appointed, by the manual signature of a duly
authorized officer of such Registrar.
Dated:
AMERICAN STOCK TRANSFER & TRUST CO.,
Depositary, Registrar & Transfer Agent
By:
-----------------------------------
Authorized Signatory
FURTHER CONDITIONS AND AGREEMENTS FORMING PART OF THIS DEPOSITARY RECEIPT APPEAR
ON THE REVERSE SIDE
<PAGE>
[FORM OF REVERSE OF RECEIPT]
IF NECESSARY TO EFFECT COMPLIANCE BY THE COMPANY WITH REQUIREMENTS OF THE
INTERNAL REVENUE CODE RELATING TO REAL ESTATE INVESTMENT TRUSTS, THE RIGHTS OF
ANY HOLDER OF DEPOSITARY SHARES OR 9.10% SERIES A CUMULATIVE REDEEMABLE
PREFERRED SHARES MAY BE RESTRICTED BY THE COMPANY AND/OR THE TRANSFER THEREOF
MAY BE PROHIBITED UPON THE TERMS AND CONDITIONS SET FORTH IN THE COMPANY'S
ARTICLES OF INCORPORATION AND THE DEPOSIT AGREEMENT. THE COMPANY WILL FURNISH
TO THE REGISTERED HOLDER OF THIS DEPOSITARY RECEIPT, UPON REQUEST AND WITHOUT
CHARGE, A COPY OF SUCH TERMS AND CONDITIONS, A STATEMENT OF ALL THE POWERS,
DESIGNATIONS, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF
STOCK ISSUED BY THE COMPANY AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF SUCH PREFERENCES AND/OR RIGHTS, AND A COPY OF THE DEPOSIT AGREEMENT AND THE
DESIGNATING AMENDMENT WITH RESPECT TO THE 9.10% SERIES A CUMULATIVE REDEEMABLE
PREFERRED SHARES. REQUESTS FOR SUCH COPIES MAY BE DIRECTED TO THE SECRETARY OF
THE COMPANY OR TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
------------------------
The following abbreviations when used in the instructions on the face of
this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian
---------- ----------
TEN ENT - as tenants by the entireties (Cust) (Minor)
Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right
of survivorship and not as --------------------------------
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, hereby
--------------------------------------------
sell(s), assign(s) and transfer(s) unto
- --------------------------------------------------------------------------------
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Depositary Shares represented by the within Receipt, and do hereby irrevocably
constitute and appoint
---------------------------------------------------------
Attorney to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
Dated:
------------------------ ---------------------------------
Notice: The signature to the
assignment must correspond
with the name as written upon
the face of this Receipt in
every particular, without
alteration or enlargement or
any change whatever.
<PAGE>
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
August 13, 1996
Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Dear Sirs:
We are acting as counsel to Duke Realty Investments, Inc., an Indiana
corporation (the "Company"), in connection with the shelf registration by the
Company of shares of the Company's preferred stock ("Preferred Stock")
represented by depositary shares pursuant to a Registration Statement, file no.
33-61361 (the "Registration Statement"), on Form S-3 under the Securities Act of
1933, as amended. The Company has filed a prospectus supplement (the
"Prospectus Supplement") relating to the offering of 3,000,000 depositary shares
(plus an underwriters' over-allotment option for 450,000 depositary shares)(the
"Depositary Shares"), each representing 1/10 of a 9.10% Series A Cumulative
Redeemable Preferred Share (the "Series A Preferred Shares"). This opinion
letter is supplemental to the opinion letter filed as Exhibit 5 to the
Registration Statement, as amended.
We have examined photostatic copies of the Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws of the Company, the amendment (the
"Designating Amendment") pursuant to which the terms of the 9.10% Series A
Cumulative Redeemable Preferred Shares will be issued, the Deposit Agreement
pursuant to which the Depositary Shares will be issued and such other documents
and instruments as we have deemed necessary to enable us to render the opinion
set forth below. We have assumed the conformity to the originals of all
documents submitted to us as photostatic copies, the authenticity of the
originals of such documents, and the genuineness of all signatures appearing
thereon. As to various questions of fact material to our opinions, we have
relied upon certificates of, or communications with, officers of the Company.
<PAGE>
Duke Realty Investments, Inc.
August 13, 1996
Page 2
Based upon and subject to the foregoing, it is our opinion that:
(1) The Series A Preferred Shares and the representation of such Series A
Preferred Shares by the Depositary Shares have been duly authorized by all
necessary corporate action of the Company.
(2) When (a) the applicable provisions of the Securities Act of 1933 and such
state "blue sky" or securities laws as may be applicable have been complied
with, (b) the Company has duly filed with the Indiana Secretary of State the
Designating Amendment establishing the preferences, limitations and relative
voting and other rights of the Series A Preferred Shares prior to issuance
thereof and (c) the Series A Preferred Shares and the Depositary Shares have
been issued, delivered, and paid for, such Series A Preferred Shares and
Depositary Shares will be legally issued, fully paid, and nonassessable.
We do not hold ourselves out as being conversant with the laws of any
jurisdiction other than the federal laws of the United States and the laws of
the State of Indiana and, therefore, this opinion is limited to the laws of
those jurisdictions.
No person or entity other than you may rely or claim reliance upon this opinion.
This opinion is limited to the matters stated herein and no opinion is implied
or may be inferred beyond the matters expressly stated.
We consent to the filing of this opinion with Form 8-K and to the
incorporation by reference of this opinion as an exhibit to the Registration
Statement and any registration statement filed under Rule 462(b) relating to
such Registration Statement.
Very truly yours,
/s/ Bose McKinney & Evans
<PAGE>
EXHIBIT 8
BOSE McKINNEY & EVANS
135 North Pennsylvania Street
Suite 2700
Indianapolis, Indiana 46204
August 13, 1996
Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Gentlemen:
We have acted as counsel to Duke Realty Investments, Inc., an Indiana
corporation (the "Company"), in connection with the shelf registration by the
Company of shares of the Company's preferred stock ("Preferred Stock")
represented by depositary shares pursuant to a Registration Statement, file no.
33-61361 (the "Registration Statement"), on Form S-3 under the Securities Act of
1933, as amended. The Company has filed a prospectus supplement (the
"Prospectus Supplement") relating to the offering of 3,000,000 depositary shares
(plus an underwriters' over-allotment option for 450,000 depositary shares)(the
"Depositary Shares"), each representing 1/10 of a 9.10% Series A Cumulative
Redeemable Preferred Share (the "Series A Preferred Shares"). In connection
therewith, you have requested our opinion with respect to the Company's
continued qualification as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"). You have also requested
our opinion regarding certain United States Federal income tax consequences of
the purchase, ownership and disposition of the Depositary Shares and the Series
A Preferred Shares. All capitalized terms used herein have their respective
meanings as set forth in the Prospectus Supplement unless otherwise stated.
In rendering the opinions stated below, we have examined and relied, with
your consent, upon the following:
(i) The Prospectus Supplement;
<PAGE>
Duke Realty Investments, Inc.
August 13, 1996
Page 2
(ii) The First Amended and Restated Agreement of Limited Partnership of
the Operating Partnership and subsequent amendments thereto, including but not
limited to the amendment establishing the terms of the 9.10% Series A Cumulative
Redeemable Preferred Units;
(iii) The First Amended and Restated Agreement of Limited Partnership of
the Services Partnership;
(iv) The Amended and Restated Articles of Incorporation of the Company;
(v) The Designating Amendment;
(vi) The Deposit Agreement pursuant to which the Depositary Shares will
be issued; and
(vii) Such other documents, records and instruments as we have deemed
necessary in order to enable us to render the opinions referred to in this
letter.
In our examination of the foregoing documents, we have assumed, with your
consent, that (i) all documents reviewed by us are original documents, or true
and accurate copies of original documents, and have not been subsequently
amended, (ii) the signatures on each original document are genuine, (iii) each
party who executed the document had proper authority and capacity, (iv) all
representations and statements set forth in such documents are true and correct,
(v) all obligations imposed by any such documents on the parties thereto have
been or will be performed or satisfied in accordance with their terms and (vi)
the Company, the Operating Partnership and the Services Partnership at all times
will be organized and operated in accordance with the terms of such documents.
We have further assumed the accuracy of the statements and descriptions of the
Company's, the Operating Partnership's and the Services Partnership's intended
activities as described in the
<PAGE>
Duke Realty Investments, Inc.
August 13, 1996
Page 3
Registration Statement and the reports incorporated therein by reference.
For purposes of rendering the opinions stated below, we have also assumed,
with your consent, the accuracy of the representations contained in the
Certificate of Representations dated August 13, 1996 provided to us by the
Company, the Operating Partnership and the Services Partnership. These
representations generally relate to the classification and operation of the
Company as a REIT and the organization and operation of the Operating
Partnership and the Services Partnership. Our opinions are further based upon
the Company's receipt of a letter ruling from the Internal Revenue Service
("IRS") dated September 30, 1994 which concluded that the Company's and the
Operating Partnership's distributive shares of the gross income of the Services
Partnership will be in proportion to their respective percentage shares of the
capital interests of the partners of the Services Partnership.
We have also reviewed the Prospectus Supplement as to its sections
concerning the tax consequences of the ownership, sale, exchange and redemption
of Depositary Shares and Series A Preferred Shares. Based upon and subject to
the foregoing, we are of the opinion that:
1. Assuming the Company was organized in conformity with and has
satisfied the requirements for qualification and taxation as a REIT
under the Code for each of its taxable years from and including the
first taxable year for which the Company made the election to be taxed
as a REIT, the proposed methods of operation of the Company, the
Operating Partnership and the Services Partnership as described in the
Registration Statement and as represented by the Company, the
Operating Partnership and the Services Partnership will permit the
Company to continue to qualify to be taxed as a REIT for its current
and subsequent taxable years; and
<PAGE>
Duke Realty Investments, Inc.
August 13, 1996
Page 4
2. The tax consequences of the purchase, ownership and disposition of the
Depositary Shares and Series A Preferred Shares will be consistent
with the discussion contained in the section entitled "Certain Federal
Income Tax Considerations" in the Prospectus Supplement.
The opinions set forth in this letter represent our conclusions as to the
application of federal income tax laws existing as of the date of this letter to
the transactions described herein. We can give no assurance that legislative
enactments, administrative changes or court decisions may not be forthcoming
that would modify or supersede our opinions. Moreover, there can be no
assurance that positions contrary to our opinions will not be taken by the IRS,
or that a court considering the issues would not hold contrary to such opinions.
Further, the opinions set forth above represent our conclusion based upon the
documents, facts and representations referred to above. Any material amendments
to such documents, changes in any significant facts or inaccuracy of such
representations could affect the opinions referred to herein. Although we have
made such inquiries and performed such investigations as we have deemed
necessary to fulfill our professional responsibilities as counsel, we have not
undertaken an independent investigation of the facts referred to in this letter.
We express no opinion as to any federal income tax issue or other matter
except those set forth or confirmed above. We consent to the filing of this
opinion with Form 8-K, to the incorporation by reference of this opinion as an
exhibit to the registration statement of the Operating Partnership and Duke
Realty Investments, Inc. (file no. 33-61361) and any registration statement
filed under Rule 462(b) relating to such registration statement and to the
reference to our firm under the heading "Legal Matters" in the Prospectus
Supplement.
Very truly yours,
/s/ Bose McKinney & Evans
<PAGE>
THIRD AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
DUKE REALTY LIMITED PARTNERSHIP
The undersigned, as the General Partner of Duke Realty Limited Partnership
(the "Partnership"), hereby amends the Partnership's Amended and Restated
Agreement of Limited Partnership, as heretofore amended (the "Partnership
Agreement"), pursuant to Sections 4.02(b) and 9.05(a)(v) of the Partnership
Agreement, to add a new Section 4.13 to read as provided in EXHIBIT A hereto.
In all other respects, the Partnership Agreement shall continue in full force
and effect as amended hereby. Any capitalized terms used in this Amendment and
not defined herein have the meanings given to them in the Partnership Agreement.
Dated as of August 16, 1996.
DUKE REALTY INVESTMENTS,
INC., as General Partner
By: /s/ Dennis D. Oklak
----------------------------
Dennis D. Oklak
Vice President and Treasurer
<PAGE>
EXHIBIT A
SECTION 4.13. SERIES A CUMULATIVE REDEEMABLE PREFERRED UNITS. Pursuant to
authority granted under Section 4.02(b) of this Agreement, the General Partner
hereby establishes a series of preferred Units designated the 9.10% Series A
Cumulative Redeemable Preferred Units (Liquidation Preference $250.00 Per Unit)
(the "Series A Preferred Units") on the following terms:
(a) NUMBER AND HOLDER. The number of Series A Preferred Units shall not
exceed 460,000 and shall at all times be equal to the number of 9.10% Series A
Cumulative Redeemable Preferred Shares ("Series A Preferred Shares") issued by
the General Partner and then outstanding. Series A Preferred Units shall be
issued only to and held only by the General Partner.
(b) RELATIVE SENIORITY. In respect of rights to receive Distributions of
Distributable Cash pursuant to Section 4.03 and to participate in Distributions
or payments in the event of any liquidation or termination of the Partnership
pursuant to Section 4.04, the Series A Preferred Units shall rank senior to the
Units initially established under Section 2.03 and issued under Sections 4.01
and 4.02(a) ("Common Units") and any other class or series of Units of the
Partnership ranking, as to Distributions and upon liquidation, junior to the
Series A Preferred Units (collectively, "Junior Units"). In the event of
Distributions from a Terminating Capital Transaction pursuant to Section 4.04,
Distributions to the holder of Series A Preferred Units will be made prior to
Distributions to holders of Junior Units or to other Partners in accordance with
Capital Account positive balances pursuant to Section 4.04(d).
(c) DISTRIBUTIONS.
(1) The General Partner, as holder of the then outstanding Series A
Preferred Units, shall be entitled to receive, when and as declared by the
General Partner out of any funds legally available therefor, cumulative
Distributions at the rate of $22.75 per Series A Preferred Unit per year,
payable in equal amounts of $5.6875 per Series A Preferred Unit quarterly
in cash on the last day of each February, May, August and November or, if
not a Business Day (as hereinafter defined), the succeeding Business Day,
beginning on December 2, 1996 (each such day being hereinafter called a
"Quarterly Distribution Date" and each period ending on a Quarterly
Distribution Date being hereinafter called a "Distribution Period").
Distributions shall be payable to the General Partner as holder of the
Series A Preferred Units. The amount of any Distribution payable for any
Distribution Period shorter than a full Distribution Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day
months. Distributions on each share of Series A Preferred Units shall
accrue and be cumulative from and including the date of original issue
thereof, whether or not (i) Distributions on such Units are earned or
declared or (ii) on any Quarterly Distribution Date there shall be funds
legally available for the payment of Distributions. Distributions paid on
the Series A Preferred Units in an amount less than the total amount of
such Distributions at the time accrued and payable on such Series A
Preferred Units shall
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be allocated pro rata on a per Unit basis among all such Series A Preferred
Units at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City are authorized or required by law, regulation or executive
order to close.
(2) The amount of any Distributions accrued on any Series A Preferred
Units at any Quarterly Distribution Date shall be the amount of any unpaid
Distributions accumulated thereon, to and including such Quarterly
Distribution Date, whether or not earned or declared, and the amount of
Distributions accrued on any Series A Preferred Units at any date other
than a Quarterly Distribution Date shall be equal to the sum of the amount
of any unpaid Distributions accumulated thereon, to and including the last
preceding Quarterly Distribution Date, whether or not earned or declared,
plus an amount calculated on the basis of the annual Distribution rate of
$22.75 per Series A Preferred Unit for the period after such last preceding
Quarterly Distribution Date to and including the date as of which the
calculation is made based on a 360-day year of twelve 30-day months.
(3) Except as provided in this Section 4.13, the Series A Preferred
Units shall not be entitled to participate in the earnings or assets of the
Partnership.
(4) Any Distribution payment made on the Series A Preferred Units
shall be first credited against the earliest accrued but unpaid
Distribution due with respect to such Series A Preferred Units which
remains payable.
(5) All Distributions made on the Series A Preferred Units shall
result in a corresponding reduction to the Capital Accounts of the holders
of such Series A Preferred Units.
(d) LIQUIDATION RIGHTS.
(1) Upon the voluntary or involuntary dissolution and liquidation or
winding up of the Partnership, the holders of the Series A Preferred Units
then outstanding shall be entitled to receive and to be paid out of the
assets of the Partnership available for Distribution to its Partners,
before any payment or Distribution shall be made on any Junior Units, the
amount of $250.00 per Series A Preferred Unit, plus accrued and unpaid
Distributions thereon. Such Distributions shall result in a corresponding
reduction to the Capital Accounts of the holders of such Series A Preferred
Units.
(2) After the payment to the holders of the Series A Preferred Units
of the full preferential amounts provided for in this Section 4.13, the
holders of the Series A Preferred Units, as such, shall have no right or
claim to any of the remaining assets of the Partnership.
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(3) If, upon any voluntary or involuntary dissolution and liquidation
or winding up of the Partnership, the amounts payable with respect to the
preference value of the Series A Preferred Units and any other Units of the
Partnership ranking as to any such Distribution on a parity with the Series
A Preferred Units are not paid in full, the holders of the Series A
Preferred Units and of such other Units will share ratably in any such
Distribution of assets of the Partnership in proportion to the full
respective preference amounts to which they are entitled.
(4) Neither the sale of all or substantially all of the property or
business of the Partnership, nor the merger or consolidation of the
Partnership into or with any other entity or the merger or consolidation of
any other entity into or with the Partnership, shall be deemed to be a
voluntary or involuntary dissolution and liquidation or winding up for the
purposes of this Section 4.13.
(e) REDEMPTION.
(1) REDEMPTION. The General Partner shall cause the Partnership to
redeem one Series A Preferred Unit for each Series A Preferred Share
redeemed by the General Partner, at a price per Series A Preferred Unit
(the "Series A Redemption Price"), payable in cash, of $250.00, together
with all accrued and unpaid Distributions to and including the date fixed
for redemption of such Series A Preferred Shares (the "Series A Redemption
Date").
(2) PROCEDURES OF REDEMPTION.
(i) Provided that on or before the Series A Redemption Date all
funds necessary for the redemption by the General Partner of the
associated Series A Preferred Shares shall have been irrevocably set
aside by the General Partner or the Partnership, separate and apart
from its other funds in trust for the pro rata benefit of the General
Partner as holder of the Series A Preferred Units to be redeemed, so
as to be, and to continue to be available therefor, then, from and
after the Series A Redemption Date, Distributions on the Series A
Preferred Units to be redeemed shall cease to accumulate, and said
Series A Preferred Units shall no longer be deemed to be outstanding
and shall not have the status of Series A Preferred Units and all
rights of the General Partner as the holder thereof (except the right
to receive the Series A Redemption Price) shall cease. Upon surrender
of the certificates for any Series A Preferred Units so redeemed
(properly endorsed or assigned for transfer, if the Partnership shall
so require), such Series A Preferred Units shall be redeemed by the
Partnership at the Series A Redemption Price. In case fewer than all
the Series A Preferred Units represented by any such certificate are
redeemed, a new certificate or certificates shall be issued
representing the unredeemed Series A Preferred Units without cost to
the General Partner as holder thereof.
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(ii) Any funds deposited with a bank or trust company for the
purpose of redeeming Series A Preferred Units shall be irrevocable
except that:
(A) the Partnership or the General Partner, as the case may
be, as depositor of the funds shall be entitled to receive from
such bank or trust company the interest or other earnings, if
any, earned on any money so deposited in trust, and the General
Partner as holder of any Series A Preferred Units redeemed shall
have no claim to such interest or other earnings; and
(B) any balance of monies so deposited and unclaimed by the
General Partner as holder of the Series A Preferred Units
entitled thereto at the expiration of two years from the
applicable Series A Redemption Date shall be repaid, together
with any interest or other earnings earned thereon, to the
Partnership, and after any such repayment, the General Partner as
holder of any Series A Preferred Units entitled to the funds so
repaid to the Partnership shall look only to the Partnership for
payment without interest or other earnings.
(iii) Unless full accumulated Distributions on all Series A
Preferred Units shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past Distribution Periods and the then
current Distribution Period, no Series A Preferred Units shall be
redeemed or purchased or otherwise acquired directly or indirectly
(except by conversion into or exchange for Junior Units); provided,
however, that the foregoing shall not prevent the redemption of Series
A Preferred Units pursuant to this Section 4.13 or the purchase or
acquisition of Series A Preferred Units pursuant to a purchase or
exchange offer made to the General Partner as the sole holder of all
outstanding Series A Preferred A Units.
(iv) If the Series A Redemption Date is after a record date for
payment of dividends on the Series A Preferred Shares and before the
related Quarterly Distribution Date, the Distribution payable on such
Quarterly Distribution Date shall be paid to the General Partner
notwithstanding the redemption of the Series A Preferred Units between
such record date and the related Quarterly Distribution Date or the
Partnership's default in the payment of the Distribution due.
(f) VOTING RIGHTS. Except as required by law, and as set forth below, the
holders of the Series A Preferred Units shall not be entitled to vote at any
meeting for any purpose or otherwise to participate in any action taken by the
Partnership or the holders of Units, or to receive notice of any meeting of
holders of Units. Accordingly, any calculation in connection with Special
Partner Approval or any matter requiring the approval of a specified number or
percentage of Units shall be made without regard to the Series A Preferred
Units.
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(1) So long as any Series A Preferred Units remain outstanding, the
Partnership will not, without the affirmative vote or consent of the
General Partner as holder of the Series A Preferred Units, (i) authorize or
create, or increase the authorized or issued amount of, any class or series
of Units ranking prior to the Series A Preferred Units with respect to the
payment of Distributions or the Distribution of assets upon liquidation or
winding up or reclassify any authorized Units of the Partnership into such
Units, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such Units; or (ii) amend,
alter or repeal the provisions of the Partnership's Amended and Restated
Agreement of Limited Partnership, as amended, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Series A
Preferred Units or the General Partner as holder thereof; provided,
however, with respect to the occurrence of any of the Events set forth in
(ii) above, so long as the Series A Preferred Units remain outstanding with
the terms thereof materially unchanged, taking into account that upon the
occurrence of an Event, the Partnership may not be the surviving entity,
the occurrence of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting power of
the General Partner as the holder of Series A Preferred Units and provided
further that (x) any increase in the amount of the authorized Preferred
Units or the creation or issuance of any other Series A Preferred Units, or
(u) any increase in the amount of authorized Series A Preferred Units or
any other preferred Units, in each case ranking on a parity with or junior
to the Series A Preferred Units with respect to payment of Distributions or
the distribution of assets upon liquidation or winding up, shall not be
deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
(2) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding Series A Preferred Units shall
have been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
(g) CONVERSION. The Series A Preferred Units are not convertible into or
exchangeable for any other property or securities of the Partnership.
(h) ALLOCATION OF PROFITS AND LOSSES.
(1) Notwithstanding the allocation provisions in Section 4.05, for
each fiscal year of the Partnership, Profits shall first be allocated to
the holders of Series A Preferred Units in an amount equal to the amount of
Distributions to which the holders of such units are entitled pursuant to
Section 4.13(c). To the extent insufficient Profits exist for such
purposes in a fiscal year, Profits in the next succeeding fiscal year shall
first be allocated to holders of Series A Preferred Units to eliminate such
deficiency until such holders have been allocated cumulative Profits equal
to one hundred percent (100%) of the Distributions both current and
cumulative to which such holders are entitled.
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(2) Notwithstanding the allocation provisions contained in
Section 4.05, in the event of a Terminating Capital Transaction in which
the Partnership is liquidated, Losses shall be allocated to the holders of
Series A Preferred Units if, and only if, after the reduction of all other
Partners' Capital Accounts to zero, remaining Losses exist, but only to the
extent of the positive balances in the Capital Accounts of such holders.
(3) Subject to the provisions of Section 4.08, the holders of
Series A Preferred Units shall be allocated their pro rata share of each
item of Profit and Loss of the Partnership based upon the percentage of all
Profits and Losses of the Partnership allocated to such holders.
(4) All determinations of Percentage Shares shall be made without
regard to Series A Preferred Units.
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