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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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DUKE REALTY INVESTMENTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
INDIANA 35-174049
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
8888 KEYSTONE CROSSING, SUITE 1200
INDIANAPOLIS, INDIANA 46240
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
If this Form relates to the If this Form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(b) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction A.(c), pursuant to General Instruction A.(d)
please check the following box /x/ please check the following box / /
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM
RELATES: 001-09044
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON
TO BE SO REGISTERED WHICH
------------------- EACH CLASS IS TO BE REGISTERED
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Common Shares, $.01 par value The New York Stock Exchange, Inc.
Series F Preference Shares, Each
Share Representing a 1/1,000
Ownership Interest in One Series F
Cumulative Redeemable Preferred
Share The New York Stock Exchange, Inc.
Series H Preference Shares, Each
Share Representing a 1/1,000
Ownership Interest in One Series H
Cumulative Redeemable Preferred
Share The New York Stock Exchange, Inc.
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
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The securities of Duke Realty Investments, Inc. (the "Registrant") to
be registered on The New York Stock Exchange, Inc. are (i) Preference
Shares ("Series F Preference Shares"), each representing a one-thousandth
(1/1,000) ownership interest in one 8.0% Series F Cumulative Redeemable
Preferred Share, $.01 par value, $25.00 liquidation preference ("Series F
Preferred Shares") and (ii) Preference Shares ("Series H Preference
Shares"), each representing a one-thousandth (1/1,000) ownership interest
in one 8.625% Series H Cumulative Redeemable Preferred Share, $.01 par
value, $25.00 liquidation preference ("Series H Preferred Shares").
The descriptions of the Preference Shares and the Preferred Shares under the
heading "Description of Duke Capital Stock Issued in Connection with the
Proposed Merger" set forth in the Joint Proxy Statement and Prospectus for
the Annual Meeting of Shareholders of Duke Realty Investments, Inc. and a
Special Meeting of the Shareholders of Weeks Corporation which will be filed
with the Securities and Exchange Commission pursuant to Rule 424(b) subsequent
to the filing of this Form 8-A shall be deemed to be incorporated by
reference to this Form 8-A and shall be part hereof as of the date of filing
of such document.
ITEM 2. EXHIBITS
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The securities described herein are to be registered on The New York
Stock Exchange, Inc. (the "Exchange"), on which other securities of the
Registrant are registered. Accordingly, the following exhibits required in
accordance with Part I to the instructions as to Exhibits to Form 8-A have
been or will be duly filed with the Exchange.
4.1 Form of Articles of Amendment of Registrant's Articles of
Incorporation.
4.2 Form of Deposit Agreement among Registrant, American Stock Transfer
and Trust Co. and the holders from time to time of certain Preference
Shares (which includes as an exhibit the form of Preference Receipt
evidencing Preference Shares).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
DUKE REALTY INVESTMENTS, INC.
By: /s/
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Dennis D. Oklak
Executive Vice President and
Chief Accounting Officer
Date:
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Exhibit 1
ARTICLES OF AMENDMENT
TO SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
DUKE-WEEKS REALTY CORPORATION
The undersigned officer of Duke-Weeks Realty Corporation (the
"Corporation"), existing pursuant to the Indiana Business Corporation Law,
as amended (the "Act"), desiring to give notice of corporate action
effectuating amendment of certain provisions of its Second Amended and
Restated Articles of Incorporation, certifies the following facts:
ARTICLE I
AMENDMENT
Section 1. The date of incorporation of the Corporation is March 12, 1992.
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Section 2.
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The name of the Corporation following this amendment to the Articles
of Incorporation is Duke-Weeks Realty Corporation
Section 3.
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Article of the Second Amended and Restated Articles of
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Incorporation is amended to add Sections , the exact text of which is
set forth in EXHIBIT A hereto. -------
ARTICLE II
MANNER OF ADOPTION AND VOTE
Section 1. Action by Directors.
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The Board of Directors of the Corporation duly adopted a resolution
proposing to amend the terms and provisions of Article of the Second
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Amended and Restated Articles of Incorporation These resolutions were
adopted at a meeting duly held on , 1999 at which a quorum was
present. -------
Section 2. Action by Shareholders.
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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 Second
Amended and Restated Articles of Incorporation.
Section 3. Compliance with Legal Requirements.
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The manner of 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 Second Amended and Restated Articles of
Incorporation, and the Second Amended and Restated By-Laws of the
Corporation.
Executed this day of , 1999.
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<PAGE>
Exhibit A
6.10 Series F Preferred Stock.
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Pursuant to the 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 8.00% Series F
Cumulative Redeemable Preferred Shares (the "Series F Preferred Stock"),
the holders of which shall receive units representing one one-thousandth
(1/1,000) of a share (the "Units") of such Series F Preferred Stock, on the
following terms:
(a) Number.
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The maximum number of authorized shares of the Series F Preferred
Stock shall be 7,400.
(b) Relative Seniority.
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In respect of rights to receive dividends and to participate in
distributions of payments in the event of any liquidation, dissolution or
winding up of the Corporation, the Series F Preferred Stock shall rank (a)
senior to any class or series of Equity Stock of the Corporation ranking,
as to the payment of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, junior to the Series F Preferred
Stock (collectively, "Junior Stock"), (b) senior to any class or series of
Equity Stock of the Corporation ranking, as to the payment of dividends and
as to the distribution of assets upon liquidation, dissolution or winding
up, junior to the Series F Preferred Stock (collectively, "Fully Junior
Stock"), and (c) on a parity with any class or series of Equity Stock of
the Corporation ranking, as to the payment of dividends and as to the
distribution of assets upon liquidation, dissolution or winding up, whether
or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof are different from those of the Series
F Preferred Stock, if the holders of such class or series of Equity Stock
and the Series F Preferred Stock shall be entitled to the receipt of
dividends and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or
priority one over the other (collectively, "Parity Stock").
(c) Dividends.
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(1) The holders of the then outstanding Units shall be entitled
to receive, when, as and if declared by the Board of Directors out of
funds legally available therefor, cumulative dividends at the rate of
$2.00 per share per year, payable in equal amounts of $0.50 per share
quarterly in cash on the last day of each January, April, July and
October or, if not a Business Day (as hereinafter defined), the next
succeeding Business Day. Dividends shall begin to accrue and shall be
fully cumulative from the first date on which the pertinent Units of
the Series F Preferred Stock are issued and sold and shall first be
payable on October 31, 1997 (each such payment date being hereafter
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 15th
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
50 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
the actual number of days in such period. Dividends paid on the Units
in an amount less than the total amount of such dividends at the time
accrued and payable on such Units shall be allocated pro rata on a per
share basis among all such Unit 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 dividends accrued on any Units at any
Quarterly
<PAGE>
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 Units
of Series F Preferred Stock 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 $2.00
per Unit for the period after such last preceding Quarterly Dividend
Date to and including the date as of which the calculation is made
based on the actual number of days in such period.
(3) Except as provided in this Section 6.10, the Units will not
be entitled to any dividends in excess of full cumulative dividends as
described above and shall not be entitled to participate in the
earnings or assets of the Corporation, and no interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend
payment or payments on the Units which may be in arrears.
(4) Any dividend payment made on the Units shall first be
credited against the earliest accrued but unpaid dividend due with
respect to such Units which remains payable.
(5) If, for any taxable year, the Corporation 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 Units shall equal
(i) the Capital Gains Amount multiplied by (ii) a fraction that is
equal to (a) the total dividends paid or made available to the holders
of the Units of the Series F Preferred Stock for the year over (b) the
Total Dividends.
(6) No dividends on the Units shall be authorized by the Board
of Directors or be paid or set apart for payment by the Corporation at
such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibit such authorization, payment or setting apart for payment or
provide that such authorization, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such
authorization or payment shall be restricted or prohibited by law.
Notwithstanding the foregoing, dividends on the Units will accrue
whether or not the Corporation has earnings, whether or not there are
funds legally available for the payment of such dividends and whether
or not such dividends are authorized.
(7) So long as any Units of Series F Preferred Stock remain
outstanding, no dividends, except as described in the immediately
following sentence, shall be declared or paid or set apart for payment
on any class or series of Parity Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set
apart for such payment on the Units for all Dividend Periods
terminating on or prior to the dividend payment date for such class or
series of Parity Stock. When dividends are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all
dividends declared upon the Units and all dividends declared upon any
other class or series of Parity Stock shall be declared ratably in
proportion to the respective amounts of dividends accumulated and
unpaid on the Units and accumulated and unpaid on such Parity Stock.
(8) So long as any Units of Series F Preferred Stock remain
outstanding, no dividends (other than dividends or distributions paid
solely in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Fully Junior Stock) shall be declared or paid or set
apart for payment or other distribution declared or made upon Junior Stock
or Fully Junior Stock, nor shall any Junior Stock or Fully Junior Stock
be redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of shares of Common Stock made for purposes
of any employee incentive or benefit plan of the Corporation or any
subsidiary) for any consideration (or any monies be paid to or made
available for a sinking fund for the redemption of any such shares) by the
<PAGE>
Corporation, directly or indirectly (except by conversion
into or exchange for shares of Fully Junior Stock), unless
in each case (i) the full cumulative dividends on all
outstanding Units of Series F Preferred Stock and any other
Parity Stock of the Corporation shall have been or
contemporaneously are declared and paid or declared and set
apart for payment for all past Dividend Periods with respect
to the Units and all past dividend periods with respect to
such Parity Stock and (ii) sufficient funds shall have been
or contemporaneously are declared and paid or declared and
set apart for the payment of the dividend for the current
Dividend Period with respect to the Units and the current
dividend period with respect to such Parity Stock.
(d) Liquidation Rights
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(1) Upon the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the holders of the Units 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 Stock, the amount of $25.00 per Unit, plus accrued and unpaid
dividends thereon.
(2) After the payment to the holders of the Units of the full
preferential amounts provided for in this Section 6.10, any other
series or class of Junior Stock or Fully Junior Stock shall, subject
to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid, and the
holders of the Units, 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 assets of the
Corporation, or proceeds thereof, distributable among the holders of
the Units shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof,
shall be distributed among the holders of the Units and any such other
Parity Stock ratably in accordance with the respective amounts that
would be payable on such Units and any such other Parity Stock if all
amounts payable thereon were paid in full.
(4) Neither a consolidation nor a merger of any other entity
into or with the Corporation, a statutory share exchange by the
Corporation or a sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Corporation,
shall be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes of this Section 6.10
(e) Redemption by the Corporation.
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(1) Optional Redemption.
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On and after October 10, 2002, the Corporation may, at its
option, redeem at any time all or, from time to time, any part of the
Series F Preferred Stock at a price per Unit (the "Redemption Price"),
payable in cash, of $25.00, together with all accrued and unpaid
dividends to and including the date fixed for redemption (the
"Redemption Date"), without interest, to the full extent the Company
has funds legally available therefor. The Series F Preferred Stock
shall have no stated maturity and will not be subject to any sinking
fund or mandatory redemption provisions.
(2) Procedures of Redemption.
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(i) Notice of redemption will be given by publication in a newspaper
of general circulation in the City of New York, such publication to be made
once a week for two successive weeks commencing not less than 30 nor more
than 90 days prior to the Redemption Date. Notice of any redemption will
also be mailed by the registrar, postage prepaid, not less than 30 nor more
than 90 days prior to the Redemption Date, addressed to
<PAGE>
each holder of record of the Units to be redeemed at the address
set forth in the share transfer records of the registrar. Any
notice mailed in the manner provided herein shall be conclusively
presumed to have been given on the date mailed whether or not the
holder received the notice. 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 Units
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 Units may be
listed or admitted to trading, such notice shall state: (a) the
Redemption Date; (b) the Redemption Price; (c) the number of
Units of Series F Preferred Stock to be redeemed; (d) the place
or places where certificates for such Units are to be surrendered
for payment of the Redemption Price; and (e) that dividends on
the Units to be redeemed will cease to accumulate on the
Redemption Date. If fewer than all of the Units of Series F
Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of Units of
Series F Preferred Stock to be redeemed from such holder.
(ii) If notice has been mailed in accordance with
subparagraph (e)(2)(i) above and provided that on or before the
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 Units so called for
redemption, so as to be, and to continue to be available
therefor, then, from and after the Redemption Date, dividends on
the Units so called for redemption shall cease to accumulate, and
said Units shall no longer be deemed to be outstanding and shall
not have the status of Units of Series F Preferred Stock and all
rights of the holders thereof as shareholders of the Corporation
(except the right to receive the Redemption Price) shall cease.
Upon surrender, in accordance with such notice, of the
certificates for any Units of Series F Preferred Stock so
redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), such
Units of Series F Preferred Stock shall be redeemed by the
Corporation at the Redemption Price. In case fewer than all the
Units of Series F Preferred Stock represented by any such
certificate are redeemed, a new certificate or certificates shall
be issued presenting the unredeemed Units of Series F Preferred
Stock without cost to the holder thereof.
(iii) Any funds deposited with a bank or trust company
for the purpose of redeeming Units of Series F Preferred Stock
shall be irrevocably deposited 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 Units 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 Units entitled
thereto at the expiration of two years from the applicable
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 Units entitled to the
funds so repaid to the Corporation shall look only to the
Corporation for payment without interest or other earnings.
(iv) No Units of Series F Preferred Stock may be redeemed
except from proceeds from the sale of other capital stock of the
Corporation, 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.
<PAGE>
(v) Unless full accumulated dividends on all Units of
Series F Preferred Stock and any other class or series of Parity
Stock 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 Units or Parity Stock shall be
redeemed or purchased or otherwise acquired directly or
indirectly; provided, however, that the foregoing shall not
prevent the redemption of Units or Parity Stock to preserve the
Corporation's REIT status or the purchase or acquisition of Units
or Parity Stock pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding Units of Series F
Preferred Stock or Parity Stock, as the case may be.
(vi) If the 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 Units of Series F Preferred Stock 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. Except as provided
above, the Company will make no payment or allowance for unpaid
dividends, whether or not in arrears, on Units to be redeemed.
(vii) In case of redemption of less than all of the
Units of the Series F Preferred Stock at the time outstanding,
the Units of Series F Preferred Stock to be redeemed shall be
selected by the Corporation by lot or pro rata from the holders
of record of such Units in proportion to the number of Units of
Series F Preferred Stock held by such holders (with adjustments
to avoid redemption of fractional shares) or by any other
equitable method determined by the Corporation in its sole and
absolute discretion.
(f) Voting Rights.
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Except as required by law, and as set forth below, the holders of
the Units shall not be entitled to vote at any meeting of the
shareholders of the Corporation 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 and the consent of the holders of the Units
shall not be required for the taking of any corporate action.
(1) If and whenever dividends payable on the Units or any
series or class of Parity Stock shall be in arrears for six
consecutive or otherwise Dividend Periods, whether or not declared,
the number of directors then constituting the Board of Directors
shall be increased by two, and the holders of such Units, together
with the holders of shares of every other series of Parity Stock,
voting together as a single class regardless of series, shall be
entitled to vote for the election of two additional directors of
the Corporation at any annual meeting of shareholders or special
meeting held in place thereof, or at a special meeting of the
holders of the Units and the Parity Stock called as hereinafter
provided. Whenever all arrears in dividends on the Units and the
Parity Stock then outstanding shall have been paid and dividends
thereon for the current Dividend Period shall have been paid or
declared and set apart for payment, then the right of the holders
of the Units and the Parity Stock to elect such additional two
directors shall immediately cease (but subject always to the same
provision for the vesting of such voting rights in the case of
any similar future arrearages in six consecutive Dividend
Periods), and the terms of office of all persons elected as
directors by the holders of the Units and the Parity Stock shall
immediately terminate and the number of the Board of Directors
shall be reduced accordingly.
(2) At any time after such voting rights shall have been so
vested in the holders of the Units and the Parity Stock, the
secretary of the Corporation may, and upon the written
<PAGE>
request of holders of record of at least ten percent (10%) of the
Units then outstanding (addressed to the secretary at the
principal office of the Corporation) shall, call a special
meeting of the holders of the Units and of the Parity Stock for
the election of the two directors to be elected by them as herein
provided, such call to be made by notice similar to that provided
in the Bylaws of the Corporation for a special meeting of the
shareholders or as required by law. If any such special meeting
required to be called as provided above shall not be called by
the secretary within 20 days after receipt of any such request,
then any holder of Units may call such meeting, upon the notice
provided above, and for that purpose shall have access to the
stock records of the Corporation. The directors elected at any
such special meeting shall hold office until the next annual
meeting of the shareholders or special meeting held in lieu
thereof if such office shall not have previously terminated as
provided above. If any vacancy shall occur among the directors
elected by the holders of the Units and the Parity Stock, a
successor shall be elected by the Board of Directors, upon the
nomination of the then-remaining director elected by the holders
of the Units and the Parity Stock or the successor of such
remaining director, to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if such
office shall not have previously terminated as provided above.
(3) So long as any Units of Series F Preferred Stock remain
outstanding, the Corporation will not, without the affirmative
vote or consent of the holders of at least two-thirds of the
Units and the Parity Stock outstanding at the time, acting as a
single class regardless of series, given in person or by proxy,
either in writing or at a meeting,
(i) authorize or create, or increase the authorized or issued
amount of, any class or series of Equity Securities ranking prior to
the Series F Preferred Stock 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 security
convertible into or evidencing the right to purchase any such shares;
or
(ii) amend, alter or repeal the provisions of the Articles of
Incorporation, including this Amendment, so as to materially and
adversely affect any right, preference, privilege or voting power of
the Series F Preferred Stock, the Parity Stock or the holders thereof;
provided, however, that the amendment of the provisions of the
Articles of Incorporation so as to authorize or create or to increase
the authorized amount of shares of any class of any Fully Junior Stock
or Junior Stock that are not senior in any respect to the Series F
Preferred Stock, or any shares of any class ranking on a parity with
the Series F Preferred Stock or the Parity Stock, shall not be deemed
to adversely affect the rights, preferences, privileges or voting
power of the Series F Preferred Stock; and provided further, however,
that if any such amendment, alteration or repeal would materially and
adversely affect any right, preference, privilege or voting power of
the Series F Preferred Stock or another series of Parity Stock that is
not enjoyed by some or all of the other series otherwise entitled to
vote in accordance herewith, the affirmative vote of at least two
thirds of the votes entitled to be cast by the holders of all series
similarly affected, similarly given, shall be required in lieu of the
affirmative vote of at least two thirds of the votes entitled to be
cast by the holders of the Units of the Series F Preferred Stock and
the Parity Stock otherwise entitled to vote in accordance herewith; or
(iii) effect or validate a share exchange that affects the
Series F Preferred Stock, a consolidation with or merger of the
Corporation into another entity, or a consolidation with or merger of
another entity into the Corporation, unless in each such case each
Unit of Series F Preferred Stock (x) shall remain outstanding without
a material and adverse change to its terms and rights or (y) shall be
converted into or exchanged for preferred stock of the surviving
entity having preferences, voting powers, restrictions, limitations as
to dividends, qualifications and terms or conditions of redemption
thereof identical to that of a Unit of Series F Preferred Stock
(except for changes that do not materially and adversely affect the
holders of the Units).
<PAGE>
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 Units of Series F Preferred
Stock shall have been redeemed or called for redemption and sufficient
funds shall have been deposited in trust to effect such redemption.
(4) On each matter submitted to a vote of the holders of Units
of the Series F Preferred Stock in accordance with this Section 6.10,
or as otherwise required by law, each Unit of Series F Preferred Stock
shall be entitled to one vote. With respect to each Unit of Series F
Preferred Stock, the holder thereof may designate a proxy, with each
such proxy having the right to vote on behalf of the holder.
(g) Retirement.
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Except as otherwise provided in the Articles of Incorporation,
all Units of Series F Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation shall be restored to the status
of authorized but unissued shares of Preferred Stock, without designation
as to class or series.
(h) Conversion.
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The Units of Series F Preferred Stock are not convertible into or
exchangeable for any other property or securities of the Corporation.
(i) Record Holders.
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The Corporation and the Corporation's transfer agent may deem and
treat the record holder of any Units of Series F Preferred Stock as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor its transfer agent shall be affected by any notice to the contrary.
<PAGE>
6.11. Preferred Stock.
---------------
Pursuant to the 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 8.625% Series H
Cumulative Redeemable Preferred Shares (the "Series H Preferred Stock"),
the holders of which shall receive units representing one one-thousandth
(1/1,000) of a share (the "Units") of such Series H Preferred Stock, on the
following terms:.
(a) Number
------
The maximum number of authorized shares of the Series H Preferred Stock
shall be 2,600.
(b) Relative Seniority.
------------------
In respect of rights to receive dividends and to participate in
distributions of payments in the event of any liquidation, dissolution or
winding up of the Corporation, the Series H Preferred Stock shall rank (a)
senior to any class or series of Equity Stock of the Corporation ranking,
as to the payment of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, junior to the Series H Preferred
Stock (collectively, "Junior Stock"), (b) senior to any class or series of
Equity Stock of the Corporation ranking, as to the payment of dividends and
as to the distribution of assets upon liquidation, dissolution or winding
up, junior to the Series H Preferred Stock (collectively, "Fully Junior
Stock"), and (c) on a parity with any class or series of Equity Stock of
the Corporation ranking, as to the payment of dividends and as to the
distribution of assets upon liquidation, dissolution or winding up, whether
or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof are different from those of the Series
H Preferred Stock, if the holders of such class or series of Equity Stock
and the Series H Preferred Stock shall be entitled to the receipt of
dividends and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or
priority one over the other (collectively, "Parity Stock").
(c) Dividends.
---------
(1) The holders of the then outstanding Units shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available therefor, cumulative dividends at the rate of $2.15625
per share per year, payable in equal amounts of $0.5390625 per share
quarterly in cash on the last day of each January, April, July and October
or, if not a Business Day (as hereinafter defined), the next succeeding
Business Day. Dividends shall begin to accrue and shall be fully
cumulative from the first date on which the pertinent Units of the Series H
Preferred Stock are issued and sold and shall first be payable on January
31, 1999 (each such payment date being hereafter 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 15th 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 50 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 the
actual number of days in such period. Dividends paid on the Units in an
amount less than the total amount of such dividends at the time accrued and
payable on such Units 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.
(2) The amount of any dividends accrued on any Units 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 Units of
Series H Preferred Stock at any date other than a Quarterly Dividend Date
shall be equal to the sum of the amount of any unpaid
<PAGE>
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 $2.15625 per Units
for the period after such last preceding Quarterly Dividend Date to and
including the date as of which the calculation is made based on the actual
number of days in such period.
(3) Except as provided in this Section 6.11, the Series H Preferred
Stock will not be entitled to any dividends in excess of full cumulative
dividends as described above and shall not be entitled to participate in
the earnings or assets of the Corporation, and no interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Units which may be in arrears.
(4) Any dividend payment made on the Units shall first be credited
against the earliest accrued but unpaid dividend due with respect to such
Units which remains payable.
(5) If, for any taxable year, the Corporation 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 Units shall equal (i) the Capital Gains
Amount multiplied by (ii) a fraction that is equal to (a) the total
dividends paid or made available to the holders of the Units for the year
over (b) the Total Dividends.
(6) No dividends on the Units shall be authorized by the Board of
Directors or be paid or set apart for payment by the Corporation at such
time as the terms and provisions of any agreement of the Corporation,
including any agreement relating to its indebtedness, prohibit such
authorization, payment or setting apart for payment or provide that such
authorization, payment or setting apart for payment would constitute a
breach thereof or a default thereunder, or if such authorization or payment
shall be restricted or prohibited by law. Notwithstanding the foregoing,
dividends on the Units will accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment
of such dividends and whether or not such dividends are authorized.
(7) So long as any Units of Series H Preferred Stock remain
outstanding, no dividends, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment on any class
or series of Parity Stock for any period unless full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Units
for all Dividend Periods terminating on or prior to the dividend payment
date for such class or series of Parity Stock. When dividends are not paid
in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon the Units and all dividends declared
upon any other class or series of Parity Stock shall be declared ratably in
proportion to the respective amounts of dividends accumulated and unpaid on
the Units and accumulated and unpaid on such Parity Stock.
(8) So long as any Units of Series H Preferred Stock remain outstanding,
no dividends (other than dividends or distributions paid solely in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Fully Junior Stock) shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Stock or Fully Junior
Stock, nor shall any Junior Stock or Fully Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of shares of Common Stock made for purposes of any employee
incentive or benefit plan of the Corporation or any subsidiary) for any
consideration (or any monies be paid to or made available for a sinking
fund for the redemption of any such shares) by the Corporation, directly or
indirectly (except by conversion into or exchange for shares of Fully
Junior Stock), unless in each case (i) the full cumulative dividends on all
outstanding Units of Series H Preferred Stock and any other Parity Stock of
the Corporation shall have been or contemporaneously are declared and paid
or declared and set apart for payment for all past Dividend Periods with
respect to the Units and all past dividend periods with respect to such
Parity Stock and (ii) sufficient funds shall have been or contemporaneously
are declared and paid or declared and set apart for the payment of
<PAGE>
the dividend for the current Dividend Period with respect to the Units and
the current dividend period with respect to such Parity Stock.
(d) Liquidation Rights.
------------------
(1) Upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of the Units 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 Stock, the amount of
$25.00 per Unit, plus accrued and unpaid dividends thereon.
(2) After the payment to the holders of the Units of the full
preferential amounts provided for in this Section 6.11, any other series or
class of Junior Stock or Fully Junior Stock shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid, and the holders of the
Units, 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 assets of the Corporation, or
proceeds thereof, distributable among the holders of the Units shall be
insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity
Stock, then such assets, or the proceeds thereof, shall be distributed
among the holders of the Units and any such other Parity Stock ratably in
accordance with the respective amounts that would be payable on such Units
and any such other Parity Stock if all amounts payable thereon were paid in
full.
(4) Neither a consolidation nor a merger of any other entity into or
with the Corporation, a statutory share exchange by the Corporation or a
sale, lease, transfer or conveyance of all or substantially all of the
property or business of the Corporation, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 6.11.
(e) Redemption.
----------
(1) Optional Redemption.
-------------------
On and after November 12, 2003, the Corporation may, at its option,
redeem at any time all or, from time to time, any part of the Series
H Preferred Stock at a price per Unit (the "Redemption Price"),
payable in cash, of $25.00, together with all accrued and unpaid
dividends to and including the date fixed for redemption (the
"Redemption Date"), without interest, to the full extent the Company
has funds legally available therefor. The Series H Preferred Stock
shall have no stated maturity and will not be subject to any sinking
fund or mandatory redemption provisions.
(2) Procedures of Redemption.
------------------------
(i) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 90 days prior to the Redemption Date.
Notice of any redemption will also be mailed by the registrar, postage
prepaid, not less than 30 nor more than 90 days prior to the
Redemption Date, addressed to each holder of record of the Units to be
redeemed at the address set forth in the share transfer records of the
registrar. Any notice mailed in the manner provided herein shall be
conclusively presumed to have been given on the date mailed whether or
not the holder received the notice. 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 Units 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 Units may be listed or admitted to trading, such notice
shall state: (a) the
<PAGE>
Redemption Date; (b) the Redemption Price; (c) the number of Units of
Series H Preferred Stock to be redeemed; (d) the place or places where
certificates for such Units are to be surrendered for payment of the
Redemption Price; and (e) that dividends on the Units to be redeemed
will cease to accumulate on the Redemption Date. If fewer than all of
the Units of Series H Preferred Stock held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the
number of Units of Series H Preferred Stock to be redeemed from such
holder.
(ii) If notice has been mailed in accordance with subparagraph
(e)(2)(i) above and provided that on or before the 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 Units so called for redemption, so as to be, and to continue to
be available therefor, then, from and after the Redemption Date,
dividends on the Units so called for redemption shall cease to
accumulate, and said Units shall no longer be deemed to be outstanding
and shall not have the status of Units of Series H Preferred Stock and
all rights of the holders thereof as shareholders of the Corporation
(except the right to receive the Redemption Price) shall cease. Upon
surrender, in accordance with such notice, of the certificates for any
Units of Series H Preferred Stock so redeemed (properly endorsed or
assigned for transfer, if the Corporation shall so require and the
notice shall so state), such Units of Series H Preferred Stock shall
be redeemed by the Corporation at the Redemption Price. In case fewer
than all the Units of Series H Preferred Stock represented by any such
certificate are redeemed, a new certificate or certificates shall be
issued presenting the unredeemed Units of Series H Preferred Stock
without cost to the holder thereof.
(iii) Any funds deposited with a bank or trust company for
the purpose of redeeming Units of Series H Preferred Stock shall be
irrevocably deposited 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
Units 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 Units entitled thereto at the
expiration of two years from the applicable 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 Units entitled to the funds so repaid to the
Corporation shall look only to the Corporation for payment
without interest or other earnings.
(iv) No Units of Series H Preferred Stock may be redeemed except
from proceeds from the sale of other capital stock of the Corporation,
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 Units of Series H
Preferred Stock and any other class or series of Parity Stock 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 Units
or Parity Stock shall be redeemed or purchased or otherwise acquired
directly or indirectly; provided, however, that the foregoing shall
not prevent the redemption of Units or Parity Stock to preserve the
Corporation's REIT status or the purchase or acquisition of Units or
Parity Stock pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding Units of Series H Preferred Stock
or Parity Stock, as the case may be.
(vi) If the 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
<PAGE>
whose name the Units of Series H Preferred Stock 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. Except as provided above, the
Company will make no payment or allowance for unpaid dividends,
whether or not in arrears, on Units to be redeemed.
(vii) In case of redemption of less than all of the Units of
the Series H Preferred Stock at the time outstanding, the Units of
Series H Preferred Stock to be redeemed shall be selected by the
Corporation by lot or pro rata from the holders of record of such
Units in proportion to the number of Units of Series H Preferred Stock
held by such holders (with adjustments to avoid redemption of
fractional shares) or by any other equitable method determined by the
Corporation in its sole and absolute discretion.
(f) Voting Rights.
-------------
Except as required by law, and as set forth below, the holders of
the Units shall not be entitled to vote at any meeting of the shareholders
of the Corporation 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
and the consent of the holders of the Units shall not be required for the
taking of any corporate action.
(1) If and whenever dividends payable on the Units or any series or
class of Parity Stock shall be in arrears for six consecutive or otherwise
Dividend Periods, whether or not declared, the number of directors then
constituting the Board of Directors shall be increased by two, and the
holders of such Units, together with the holders of shares of every other
series of Parity Stock, voting together as a single class regardless of
series, shall be entitled to vote for the election of two additional
directors of the Corporation at any annual meeting of shareholders or special
meeting held in place thereof, or at a special meeting of the holders of the
Units and the Parity Stock called as hereinafter provided. Whenever all
arrears in dividends on the Units and the Parity Stock then outstanding shall
have been paid and dividends thereon for the current Dividend Period shall
have been paid or declared and set apart for payment, then the right of the
holders of the Units and the Parity Stock to elect such additional two
directors shall immediately cease (but subject always to the same provision
for the vesting of such voting rights in the case of any similar future
arrearages in six consecutive Dividend Periods), and the terms of office of
all persons elected as directors by the holders of the Units and the Parity
Stock shall immediately terminate and the number of the Board of Directors
shall be reduced accordingly.
(2) At any time after such voting rights shall have been so vested in
the holders of the Units and the Parity Stock, the secretary of the
Corporation may, and upon the written request of holders of record of at
least ten percent (10%) of the Units then outstanding (addressed to the
secretary at the principal office of the Corporation) shall, call a special
meeting of the holders of the Units and of the Parity Stock for the
election of the two directors to be elected by them as herein provided,
such call to be made by notice similar to that provided in the Bylaws of
the Corporation for a special meeting of the shareholders or as required by
law. If any such special meeting required to be called as provided above
shall not be called by the secretary within 20 days after receipt of any
such request, then any holder of Units may call such meeting, upon the
notice provided above, and for that purpose shall have access to the stock
records of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the shareholders
or special meeting held in lieu thereof if such office shall not have
previously terminated as provided above. If any vacancy shall occur among
the directors elected by the holders of the Units and the Parity Stock, a
successor shall be elected by the Board of Directors, upon the nomination
of the then-remaining director elected by the holders of the Units and the
Parity Stock or the successor of such remaining director, to serve until
the next annual meeting of the shareholders or special meeting held in
place thereof if such office shall not have previously terminated as
provided above.
(3) So long as any Units of Series H Preferred Stock remain outstanding,
the Corporation will not, without the affirmative vote or consent of the
holders of at least two-thirds of the Units and the Parity
<PAGE>
Stock outstanding at the time, acting as a single class regardless of
series, given in person or by proxy, either in writing or at a meeting,
(A) authorize or create, or increase the authorized or issued
amount of, any class or series of Equity Securities ranking prior to
the Series H Preferred Stock 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 security
convertible into or evidencing the right to purchase any such shares;
or
(B) amend, alter or repeal the provisions of the Articles of
Incorporation, including this Amendment, so as to materially and
adversely affect any right, preference, privilege or voting power of
the Series H Preferred Stock, the Parity Stock or the holders thereof;
provided, however, that the amendment of the provisions of the
Articles of Incorporation so as to authorize or create or to increase
the authorized amount of shares of any class of any Fully Junior Stock
or Junior Stock that are not senior in any respect to the Series H
Preferred Stock, or any shares of any class ranking on a parity with
the Series H Preferred Stock or the Parity Stock, shall not be deemed
to adversely affect the rights, preferences, privileges or voting
power of the Series H Preferred Stock; and provided further, however,
that if any such amendment, alteration or repeal would materially and
adversely affect any right, preference, privilege or voting power of
the Series H Preferred Stock or another series of Parity Stock that is
not enjoyed by some or all of the other series otherwise entitled to
vote in accordance herewith, the affirmative vote of at least two
thirds of the votes entitled to be cast by the holders of all series
similarly affected, similarly given, shall be required in lieu of the
affirmative vote of at least two thirds of the votes entitled to be
cast by the holders of the Units of the Series H Preferred Stock and
the Parity Stock otherwise entitled to vote in accordance herewith; or
(C) effect or validate a share exchange that affects the Series
H Preferred Stock, a consolidation with or merger of the Corporation
into another entity, or a consolidation with or merger of another
entity into the Corporation, unless in each such case each Unit of
Series H Preferred Stock (x) shall remain outstanding without a
material and adverse change to its terms and rights or (y) shall be
converted into or exchanged for preferred stock of the surviving
entity having preferences, voting powers, restrictions, limitations as
to dividends, qualifications and terms or conditions of redemption
thereof identical to that of a Unit of Series H Preferred Stock
(except for changes that do not materially and adversely affect the
holders of the Units).
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 Units of Series H Preferred
Stock shall have been redeemed or called for redemption and sufficient
funds shall have been deposited in trust to effect such redemption.
(4) On each matter submitted to a vote of the holders of Units of the
Series H Preferred Stock in accordance with this Section 6.11, or as
otherwise required by law, each Unit of Series H Preferred Stock shall be
entitled to one vote. With respect to each Unit of Series H Preferred
Stock, the holder thereof may designate a proxy, with each such proxy
having the right to vote on behalf of the holder.
(g) Retirement.
----------
Except as otherwise provided in the Articles of Incorporation,
all Units of Series H Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation shall be restored to the status
of authorized but unissued shares of Preferred Stock, without designation
as to class or series.
(h) Conversion.
----------
The Units of Series H Preferred Stock are not convertible into or
exchangeable for any other property or securities of the Corporation.
<PAGE>
(i) Record Holders.
--------------
The Corporation and the Corporation's transfer agent may deem and
treat the record holder of any Units of Series H Preferred Stock as the
true and lawful owner thereof for all purposes, and neither the
Corporation nor its transfer agent shall be affected by any notice to the
contrary.
EXHIBIT 2
DEPOSIT AGREEMENT
AMONG DUKE REALTY INVESTMENTS, INC. AND
AMERICAN STOCK TRANSFER & TRUST CO.
Dated as of , 1999
-------
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
Section 1.1. "Articles of Incorporation" 1
Section 1.2. "Company" 1
Section 1.3. "Corporate Office" 1
Section 1.4. "Deposit Agreement" 1
Section 1.5. "Depositary" 1
Section 1.6. "Depositary's Agent" 2
Section 1.7. "Designating Amendment" 2
Section 1.8. "Preference Share" 2
Section 1.9. "Preference Receipt" 2
Section 1.10. "record date" 2
Section 1.11. "record holder" or "holder" 2
Section 1.12. "Registrar" 2
Section 1.13. "Securities Act" 2
Section 1.14. "Series F Preferred Share" 2
Section 1.15. "Series H Preferred Share" 2
Section 1.16. "Transfer Agent" 2
ARTICLE II
FORM OF PREFERENCE RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF PREFERENCE RECEIPTS
Section 2.1. Form and Transferability of Preference
Receipts 3
Section 2.2. Deposit of Preferred Shares; Execution and
Delivery of Preference Receipts in Respect
Thereof 4
Section 2.3. Optional Redemption of Preferred Shares
for Cash 5
Section 2.4. Registration of Transfers of Preference
Receipts 6
Section 2.5. Combinations and Split-ups of Preference
Receipts 6
Section 2.6. Surrender of Preference Receipts and
Withdrawal of Preferred Shares 6
Section 2.7. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender
and Exchange of Preference Receipts 7
Section 2.8. Lost Preference Receipts, etc. 8
Section 2.9. Cancellation and Destruction of Surrendered
Preference Receipts 8
<PAGE>
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF PREFERENCE RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other
Information 8
Section 3.2. Payment of Fees and Expenses 8
Section 3.3. Representations and Warranties as to
Preferred Shares 9
Section 3.4. Representation and Warranty as to Preference
Receipts and Preference Shares 9
ARTICLE IV
THE PREFERRED SHARES; NOTICES
Section 4.1. Cash Distributions 9
Section 4.2. Distributions Other Than Cash 9
Section 4.3. Subscription Rights, Preferences or
Privileges 10
Section 4.4. Notice of Dividends; Fixing of Record
Date for Holders of Preference Receipts 11
Section 4.5. Voting Rights 11
Section 4.6. Changes Affecting Preferred Shares and
Reclassifications, Recapitalization, etc. 11
Section 4.7. Inspection of Reports 12
Section 4.8. Lists of Preference Receipt Holders 12
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 15
Section 5.5. Notices, Reports and Documents 16
Section 5.6. Indemnification by the Company 16
Section 5.7. Fees, Charges and Expenses 16
<PAGE>
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment 17
Section 6.2. Termination 17
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts 18
Section 7.2. Exclusive Benefit of Parties 18
Section 7.3. Invalidity of Provisions 18
Section 7.4. Notices 18
Section 7.5. Depositary's Agents 19
Section 7.6. Holders of Preference Receipts Are Parties 19
Section 7.7. Governing Law 19
Section 7.8. Inspection of Deposit Agreement and
Designating Amendment 19
Section 7.9. Headings 19
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of / / / /, 1999, 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 Preference 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 Series F Preferred
Shares and Series H Preferred Shares (as hereinafter defined) with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of the Preference Receipts evidencing Series F
Preference Shares and Series H Preference Shares representing a fractional
interest in the Series F Preferred Shares and Series H Preferred Shares,
respectively, deposited; and
WHEREAS, the Preference Receipts evidencing Series F Preference Shares
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; and Preference Receipts
evidencing Series H Preference Shares are to be substantially in the form
of Exhibit B 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 Preference 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's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.5.
SECTION 1.7 "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 1.8 "Preference Shares" shall mean the Series F Preference
Shares and the Series H Preference Shares.
SECTION 1.9 "Preference Receipt" shall mean a Depositary Preference
Receipt issued hereunder to evidence one or more of the Series F or Series
H Preference Shares, whether in definitive or temporary form, substantially
in the forms set forth as Exhibit A and Exhibit B hereto.
SECTION 1.10 "Preferred Shares" shall mean the Series F Preferred
Shares and the Series H Preferred Shares.
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 Preference
Receipt shall mean the person in whose name a Preference 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 Preference 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 "Series F Preference Share" shall mean a fractional
interest of 1/1,000 of a Series F 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 Series F
Preferred Share and held under this Deposit Agreement, all as evidenced by
the Preference Receipts issued hereunder. Subject to the terms of this
Deposit Agreement, each owner of a Series F Preference Share is entitled,
proportionately, to all the rights, preferences and privileges of the
Series F Preferred Share represented by such Series F Preference Share,
including the dividend, voting, redemption, conversion and liquidation
rights contained in the Designating Amendment.
SECTION 1.16 "Series H Preference Share" shall mean a fractional
interest of 1/1,000 of a Series H 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 Series H
Preferred Share and held under this Deposit Agreement, all as evidenced by
the Preference Receipts issued hereunder. Subject to the terms of this
Deposit Agreement, each owner of a Series H Preference Share is entitled,
proportionately, to all the rights, preferences and privileges of the
Series H Preferred Share represented by such Series H Preference Share,
including the dividend, voting, redemption, conversion and liquidation
rights contained in the Designating Amendment.
<PAGE>
SECTION 1.17 "Series F Preferred Share" shall mean the Company's 8.0%
Series F Cumulative Redeemable Preferred Shares, par value $0.01 per share,
heretofore validly issued, fully paid and nonassessable.
SECTION 1.18 "Series H Preferred Share" shall mean the Company's
8.625% Series H Cumulative Redeemable Preferred Shares, par value $0.01 per
share, heretofore validly issued, fully paid and nonassessable.
SECTION 1.19 "Transfer Agent" shall mean American Stock Transfer &
Trust Co. or any bank or trust company appointed to transfer the Preference
Receipts or the deposited Preferred Shares, as the case may be, as herein
provided.
<PAGE>
ARTICLE II
FORM OF PREFERENCE RECEIPTS, DEPOSIT OF PREFERRED SHARES,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF PREFERENCE RECEIPTS
SECTION 2.1 Form and Transferability of Preference Receipts.
-----------------------------------------------
Definitive Preference 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 Exhibits A and B annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Pending the preparation of definitive
Preference Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.2, shall execute and deliver
temporary Preference Receipts which may be printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Preference Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations
as the persons executing such Preference Receipts may determine, as
evidenced by their execution of such Preference Receipts. If temporary
Preference Receipts are issued, the Company and the Depositary will cause
definitive Preference Receipts to be prepared without unreasonable delay.
After the preparation of definitive Preference Receipts, the temporary
Preference Receipts shall be exchangeable for definitive Preference
Receipts upon surrender of the temporary Preference 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 Preference Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Preference Receipts
representing the same number of Preference Shares as represented by the
surrendered temporary Preference Receipt or Preference Receipts. Such
exchange shall be made at the Company's expense and without any charge
therefor. Until so exchanged, the temporary Preference 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
Preference Receipts.
Preference 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 Preference Receipts shall also be countersigned by
manual signature of a duly authorized signatory of the Registrar. No
Preference 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 Preference Receipt executed as provided above and
delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Preference Receipts
shall be in denominations of any number of whole Preference Shares. All
Preference Receipts shall be dated the date of their issuance.
Preference 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 Preference Shares or the Preference Receipts may be listed or
to conform with any usage with respect thereto, or
<PAGE>
to indicate any special limitations or restrictions to which any particular
Preference Receipts are subject.
Title to any Preference Receipt (and to the Preference Shares
evidenced by such Preference 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 Preference 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 Preference 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 6,000 Series F Preferred
Shares and 2,600 Series H 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 Preference Receipt or Preference Receipts for the Preference
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 Preference
Receipt or Preference Receipts for the number of whole Preference Shares
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 Preference Receipt or Preference Receipts at
the Corporate Office, except that, at the request, risk and expense of any
person
<PAGE>
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 Preference 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 Preference 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 Preference 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 Preference Receipts evidencing the Preference 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 Preference Shares to be redeemed;
if fewer than all the Preference Shares held by any holder are to be
redeemed, the number of such Preference Shares held by such holder to be so
redeemed; the place or places where Preference Receipts evidencing
Preference 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 Preference
Shares to be redeemed will cease to accrue. If fewer than all the
outstanding Preference Shares are to be redeemed, the Preference Shares to
be redeemed shall be selected pro rata (as nearly as may be practicable
without creating fractional Preference 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.
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
Preference 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
<PAGE>
of the Preferred Shares called for redemption shall cease to accrue, the
Preference Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Preference Receipts evidencing
such Preference Shares (except the right to receive the cash redemption
price and any money or other property to which holders of such Preference
Receipts were entitled upon such redemption) shall, to the extent of such
Preference Shares, cease and terminate. Upon surrender in accordance with
said notice of the Preference Receipts evidencing such Preference Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Preference Shares shall be redeemed at a cash redemption
price of $25.00 per Preference 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 Preference Shares evidenced by a Preference
Receipt are called for redemption, the Depositary will deliver to the
holder of such Preference 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 Preference Shares called for redemption,
a new Preference Receipt evidencing the Preference Shares evidenced by such
prior Preference Receipt and not called for redemption.
SECTION 2.4 Registration of Transfers of Preference Receipts.
------------------------------------------------
The Company hereby appoints the Depositary as the Registrar and
Transfer Agent for the Preference Receipts and the Depositary hereby
accepts such appointment and, as such, shall register on its books from
time to time transfers of Preference 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
Preference Receipt or Preference Receipts and deliver the same to or upon
the order of the person entitled thereto evidencing the same aggregate
number of Preference Shares evidenced by the Preference Receipt or
Preference Receipts surrendered.
SECTION 2.5 Combinations and Split-ups of Preference Receipts.
-------------------------------------------------
Upon surrender of a Preference Receipt or Preference 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 Preference Receipts,
subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Preference Receipt or Preference
Receipts in the authorized denominations requested evidencing the same
aggregate number of Preference Shares evidenced by the Preference Receipt
or Preference Receipts surrendered.
SECTION 2.6 Surrender of Preference Receipts and Withdrawal of
Preferred Shares.
- ---------------------------------------------------------------------------
Any holder of a Preference Receipt or Preference Receipts may
withdraw any or all of the deposited Preferred Shares represented by the
Preference Shares evidenced by such Preference Receipt or Preference
Receipts and all money and other property, if any, represented by such
Preference Shares by surrendering such Preference Receipt or Preference
Receipts at the Corporate Office or at such office as the Depositary may
designate for such withdrawals, Provided that a holder of a Preference
Receipt or Preference 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 Preference Shares evidenced by
the Preference Receipt or Preference Receipts so surrendered for
withdrawal, but holders of such whole or fractional Preferred Shares will
not thereafter be entitled to deposit such
<PAGE>
Preferred Shares hereunder or to receive Preference Shares therefor. If the
Preference Receipt or Preference Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Preference Shares in excess of the number of Preference 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 Preference Receipt or Preference
Receipts evidencing such excess number of Preference 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 Preference Receipt or Preference 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 Preference Receipt or Preference
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 Preference Shares
evidenced by Preference Receipts surrendered for withdrawal at the
Corporate Office, except that, at the request, risk and expense of the
holder surrendering such Preference Receipt or Preference 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 Preference Receipts.
- ---------------------------------------------------------------------------
As a condition precedent to the execution and delivery, transfer,
split-up, combination, surrender or exchange of any Preference 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 consistent with the provisions of this Deposit
Agreement as may be required by any securities exchange upon which the
deposited Preferred Shares, the Preference Shares or the Preference
Receipts may be included for quotation or listed.
The deposit of Preferred Shares may be refused, the delivery of
Preference Receipts against Preferred Shares may be suspended, the transfer
of Preference Receipts may be refused, and the transfer, split-up,
combination, surrender, exchange or redemption of outstanding Preference
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.
<PAGE>
SECTION 2.8 Lost Preference Receipts, etc.
------------------------------
In case any Preference Receipt shall be mutilated or destroyed or lost
or stolen, the Depositary, in its discretion, may execute and deliver a
Preference Receipt of like form and tenor in exchange and substitution for
such mutilated Preference Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Preference 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 Preference
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 Preference
Receipts.
- ---------------------------------------------------------------------------
All Preference 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 Preference Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF PREFERENCE 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
Preference 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 Preference Receipt, the transfer,
redemption or exchange of any Preference Receipt, the withdrawal of the
deposited Preferred Shares represented by the Preference Shares evidenced
by any Preference 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 Preference 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
Preference Receipt or any withdrawal of the Preferred Shares or money or
other property, if any, represented by the Preference Shares evidenced by
such Preference 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 Preference Shares evidenced by such Preference
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 Preference 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
<PAGE>
paid and nonassessable. Such representations and warranties shall survive
the deposit of the Preferred Shares and the issuance of Preference
Receipts.
SECTION 3.4 Representation and Warranty as to Preference Receipts
and Preference Shares.
- ---------------------------------------------------------------------------
The Company hereby represents and warrants that the Preference
Receipts, when issued, will evidence legal and valid interests in the
Preference Shares and each Preference Share will represent a legal and
valid 1/1,000 fractional interest in a deposited Preferred Share. Such
representation and warranty shall survive the deposit of the Preferred
Shares and the issuance of Preference Receipts evidencing the Preference
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
Preference 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 Preference Shares evidenced by the Preference
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 Preference Receipts held by any holder an amount on
account of taxes, the amount made available for distribution or distributed
in respect of Preference Shares represented by such Preference 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 Preference 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
Preference Receipts then outstanding.
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 Preference 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 Preference Shares evidenced by the Preference
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 Preference Receipts as provided by Section 4.1 in the
case of a distribution received in cash. The Company shall not make
<PAGE>
any distribution of such securities or property to the holders of
Preference 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
Preference 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 Preference Receipts (by the issue of warrants
or otherwise) or (b) if and to the extent instructed by holders of
Preference 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 Preference 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 Preference Receipts to be offered or sold 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 Preference
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 Preference 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 Preference 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
<PAGE>
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 Preference 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 Preference 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 Preference
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 Preference 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 Preference 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 Preference Receipt on
such record date, the Depositary shall vote or cause to be voted the amount
of Preferred Shares represented by the Preference Shares evidenced by such
Preference 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 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 Series F
Preferred Share and each Series H Preferred Share is entitled to one vote
and, accordingly, each Series F Preference Share and each Series H
Preference Share is entitled to 1/1,000 of 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 Preference Receipt, the Depositary will
abstain from voting to the extent of the Preferred Shares represented by
the Preference Shares evidenced by such Preference Receipt. The Depositary
shall not be required to exercise discretion in voting any Preferred Shares
represented by the Preference Shares evidenced by such Preference 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 Preference Share in one Preferred Share and (b) the
ratio of the redemption price per Preference 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 Preference Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof or the
new
<PAGE>
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 Preference Receipts, or may call for the surrender of all
outstanding Preference Receipts to be exchanged for new Preference Receipts
specifically describing such new deposited property. Anything to the
contrary herein notwithstanding, holders of Preference 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 Preference 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 Preference 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.
SECTION 4.7 Inspection of Reports.
----------------------
The Depositary shall make available for inspection by holders of
Preference 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
Preference Receipts as provided in Section 5.5.
SECTION 4.8 Lists of Preference 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 Preference Shares of all
persons in whose names Preference 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 Preference 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 Preference 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 Preference Receipts entitled thereto in proportion to the number of
Preference Shares held by them respectively.
<PAGE>
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 Preference 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 Preference 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 Preference Receipts, which books at all
reasonable times shall be open for inspection by the record holders of
Preference Receipts as provided by applicable law. The Depositary may
close such 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 Preference Receipts or the Preference Shares evidenced thereby
or the Preferred Shares represented by such Preference 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 Preference Receipts or
Preference 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 Preference Receipts, such Preference 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 Preference Receipts, such Preference 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 Preference 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 Preference
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
<PAGE>
assumes any obligation or shall be subject to any liability under this
Deposit Agreement or any Preference Receipt to holders of Preference
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, Preference Shares or Preference 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.
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 Preference 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 Preference 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 Preference
Receipts or Preference 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.
<PAGE>
The Company agrees that it will register the deposited Preferred
Shares and the Preference 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 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 Preference
Receipts. Any successor depositary shall promptly mail notice of its
appointment to the record holders of Preference 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 Preference 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 Preference 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 Preference Shares or the
Preference 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 Preference Receipt, a copy of this Deposit Agreement, the
form of Preference 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 Preference Receipts at
the Company's expense such other documents as may be requested by the
Company.
<PAGE>
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 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 Preference 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 Preference Shares evidenced by the
Preference Receipts, any redemption of the Preferred Shares at the option
of the Company and all withdrawals of the Preferred Shares by holders of
Preference Shares. If a holder of Preference 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 Preference 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
Preference 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 Preference
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 Preference Shares to surrender the Preference Receipt
evidencing such Preference 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
Preference Receipt at the time any such amendment becomes effective shall
be deemed, by continuing to hold such Preference Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as
amended thereby.
<PAGE>
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 Preference Receipt,
upon surrender of the Preference Receipt held by such holder, such number
of whole or fractional shares of deposited Preferred Shares that are
represented by the Preference Shares evidenced by such Preference Receipt,
together with any other property held by the Depositary in respect of such
Preference 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 Preference Receipt evidencing the Preference Shares
represented thereby on a national securities exchange. This Deposit
Agreement will automatically terminate if (i) all outstanding Preference
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
Preference 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 Preference 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.
SECTION 7.3 Invalidity of Provisions.
------------------------
In case any one or more of the provisions contained in this Deposit
Agreement or in the Preference 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
Preference Receipts shall be in writing and shall be deemed to have been
duly given
<PAGE>
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
Preference 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 Preference Receipt
hereunder or under the Preference 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 Preference 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.
SECTION 7.6 Holders of Preference Receipts Are Parties.
------------------------------------------
The holders of Preference 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 Preference Receipts by acceptance of
delivery thereof.
SECTION 7.7 Governing Law.
-------------
This Deposit Agreement and the Preference 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.
<PAGE>
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
Preference Receipt.
SECTION 7.9 Headings.
--------
The headings of articles and sections in this Deposit Agreement and in
the form of the Preference Receipts set forth in Exhibit A and Exhibit B
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 Preference
Receipts.
<PAGE>
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 Preference Receipts
shall become parties hereto by and upon acceptance by them of delivery of
Preference Receipts issued in accordance with the terms hereof.
DUKE REALTY INVESTMENTS, INC.
By:
--------------------------------
Attest: Authorized Officer
AMERICAN STOCK TRANSFER & TRUST CO.
By:
-------------------------------
Attest: Authorized Signatory
<PAGE>
Exhibit A
The Preference Shares evidenced by this Preference 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 F 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 F 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 F Cumulative Redeemable Preferred Shares. Requests for such
statement may be directed to the Secretary of the Company.
[FORM OF FACE OF PREFERENCE RECEIPT]
DR-
CERTIFICATE FOR NOT MORE THAN 6,000,000 PREFERENCE SHARES
CUSIP
--------
PREFERENCE RECEIPT FOR PREFERENCE SHARES,
EACH REPRESENTING 1/1,000 OF A SERIES F CUMULATIVE
REDEEMABLE PREFERRED SHARE
DUKE-WEEKS REALTY CORPORATION
(an Indiana corporation)
, as Depositary (the "Depositary"), hereby certifies that
------------
is the registered owner of PREFERENCE SHARES
- ---------------- -----------
("Preference Shares"), each Preference Share representing 1/1,000 of one
Series F Cumulative Redeemable Preferred Share, $0.01 par value per share
(the "Shares"), of Duke-Weeks Realty Corporation, 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
, 1999 (the "Deposit Agreement"), among the Company, the
- --------------- ---
Depositary and the holders from time to time of Preference Receipts for
Preference Shares. By accepting this Preference Receipt, the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions
of the Deposit Agreement. This Preference 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 Preference 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 PREFERENCE RECEIPT]
DUKE REALTY INVESTMENTS, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF PREFERENCE RECEIPTS WHO SO REQUESTS A COPY OF THE
DEPOSIT AGREEMENT AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO
THE SERIES F CUMULATIVE REDEEMABLE PREFERRED SHARES OF DUKE REALTY
INVESTMENTS, INC. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY
NAMED ON THE FACE OF THIS PREFERENCE RECEIPT.
The following abbreviations when used in the instructions on the face
of this Preference 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 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 OF
ASSIGNEE
--------------------------
Preference Shares represented by the within Preference Receipt,
- -----------
and do hereby irrevocably constitute and appoint Attorney to
-------------
transfer the said Preference 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 Preference
Receipt in every particular, without
alteration or enlargement or any
change whatever.
<PAGE>
Exhibit B
The Preference Shares evidenced by this Preference 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 H 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 H 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 H Cumulative Redeemable Preferred Shares. Requests for such
statement may be directed to the Secretary of the Company.
[FORM OF FACE OF PREFERENCE RECEIPT]
DR-
CERTIFICATE FOR NOT MORE THAN 2,600,000 PREFERENCE SHARES
CUSIP
------------
PREFERENCE RECEIPT FOR PREFERENCE SHARES,
EACH REPRESENTING 1/1,000 OF A SERIES H CUMULATIVE
REDEEMABLE PREFERRED SHARE
DUKE-WEEKS REALTY CORPORATION
(an Indiana corporation)
, as Depositary (the "Depositary"), hereby certifies that
- -----------------
is the registered owner of PREFERENCE SHARES ("Preference
- ---------- -------
Shares"), each Preference Share representing 1/1,000 of one Series H
Cumulative Redeemable Preferred Share, $0.01 par value per share (the
"Shares"), of Duke-Weeks Realty Corporation, 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
----------
, 1999 (the "Deposit Agreement"), among the Company, the Depositary and
- --
the holders from time to time of Preference Receipts for Preference Shares.
By accepting this Preference Receipt, the holder hereof becomes a party to
and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Preference 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
Preference 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 PREFERENCE RECEIPT]
DUKE REALTY INVESTMENTS, INC. WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF PREFERENCE RECEIPTS WHO SO REQUESTS A COPY OF THE
DEPOSIT AGREEMENT AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO
THE SERIES H CUMULATIVE REDEEMABLE PREFERRED SHARES OF DUKE REALTY
INVESTMENTS, INC. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY
NAMED ON THE FACE OF THIS PREFERENCE RECEIPT.
The following abbreviations when used in the instructions on the face
of this Preference 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 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 OF
ASSIGNEE
-----------------------------------------
Preference Shares represented by the within Preference Receipt,
- -----------
and do hereby irrevocably constitute and appoint Attorney to
------------
transfer the said Preference 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 Preference
Receipt in every particular, without
alteration or enlargement or any
change whatever.
