SUBJECT TO COMPLETION, DATED MAY 9, 1997
PROSPECTUS
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8,521 SHARES
DUKE REALTY INVESTMENTS, INC.
Common Stock
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This Prospectus relates to the offer and sale from time to
time of shares of the common stock, $.01 par value ("Common
Stock") of Duke Realty Investments, Inc. (the "Company") by a
person ("Selling Shareholder") who directly or indirectly
received such shares from the Company in transactions not
registered under the Securities Act of 1933, as amended (the
"Securities Act"). See "Selling Shareholder." The registration
of the shares of Common Stock to which this Prospectus relates
("Sale Shares") does not necessarily mean that any of such shares
will be sold by any Selling Shareholder. The Company will not
realize any cash proceeds from the sale of the Sale Shares by the
Selling Shareholder.
The Common Stock is listed on the New York Stock Exchange
under the symbol DRE. In order to maintain its qualification as a
real estate investment trust ("REIT") for federal income tax
purposes, the Company's Amended and Restated Articles of
Incorporation impose limitations on the number of shares of
capital stock that may be owned by any single person or
affiliated group. See "Restrictions on Ownership of Shares."
The Selling Shareholder from time to time may offer and sell
Sale Shares held by it directly or through agents or broker-
dealers on terms to be determined at the time of sale. See "Plan
of Distribution." The Selling Shareholder reserves the right to
accept or reject, in whole or in part, any proposed purchase of
shares of Common Stock to be made directly or through agents.
The Selling Shareholder and any agents or broker-dealers
that participate with the Selling Shareholder in the distribution
of Sale Shares may be deemed to be "underwriters" within the
meaning of the Securities Act, and any commissions received by
them and any profit on the resale of the Sale Shares may be
deemed to be underwriting commissions or discounts under the
Securities Act.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1997.
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NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE
HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
SELLING SHAREHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANY PERSON IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR
SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THE INFORMATION CONTAINED
OR INCORPORATED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO
THE DATE HEREOF.
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TABLE OF CONTENTS
Page
Available Information 3
Incorporation of Certain Documents by Reference 3
The Company 4
Use of Proceeds 4
Restrictions on Ownership of Shares 4
Federal Income Tax Considerations 4
Selling Shareholder 11
Plan of Distribution 11
Legal Opinions 12
Experts 12
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and, in accordance therewith, files reports and other information
with the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements and other information can be
inspected and copied at the Public Reference Section maintained
by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549; Chicago Regional Office, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and New York
Regional Office, 7 World Trade Center, New York, New York 10048.
Such reports, proxy statements and other information concerning
the Company can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005. The
Commission maintains a Web site (http://www.sec.gov) that
contains reports, proxy and information statements and other
information regarding the Company.
The Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon their written or oral
request, a copy of any or all of the documents incorporated
herein by reference (other than exhibits to such documents).
Written requests for such copies should be addressed to 8888
Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240, Attn:
Investor Relations, telephone number (317) 574-3531.
The Company has filed with the Commission a registration
statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933 as amended (the "Securities Act"), with
respect to the Common Stock offered hereby. For further
information with respect to the Company and the Common Stock
offered hereby, reference is made to the Registration Statement
and exhibits thereto. Statements contained in this Prospectus as
to the contents of any contract or other documents are not
necessarily complete, and in each instance, reference is made to
the copy of such contract or documents filed as an exhibit to the
Registration Statement, each such statement being qualified in
all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company under the
Exchange Act with the Commission are incorporated in this
Prospectus by reference and are made a part hereof:
1. The Company's Annual Report on Form 10-K (file no. 1-
9044) for the year ended December 31, 1996.
2. The Company's Current Report on Form 8-K (file no. 1-9044)
filed January 15, 1997, as amended on Form 8-K/A filed
January 17, 1997.
3. The description of the Common Stock contained in the
Company's registration statement on Form 10 (file no. 1-9044), as
amended.
Each document filed subsequent to the date of this
Prospectus pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to termination of the offering of all
Common Stock to which this Prospectus relates shall be deemed to
be incorporated by reference in this Prospectus and shall be part
hereof from the date of filing of such document. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
a statement contained in this Prospectus (in the case of a
statement in a previously-filed document incorporated or deemed
to be incorporated by reference herein) or in any other
subsequently filed document that is also incorporated or deemed
to be incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. Subject to the foregoing,
all information appearing in this Prospectus is qualified in its
entirety by the information appearing in the documents
incorporated by reference.
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THE COMPANY
The Company is a self-administered and self-managed real
estate investment trust that began operations through a related
entity in 1972. The Company owns direct or indirect interests in
a portfolio of industrial, office and retail properties (the
"Properties"), substantially all of which are located in the
Midwest, together with land (the "Land") for future development.
The Company has the largest commercial real estate operations in
Indianapolis and Cincinnati and is one of the largest real estate
companies in the Midwest.
All of the Company's interests in the Properties and the
Land are held by, and substantially all of its operations
relating to the Properties and the Land are conducted through
Duke Realty Limited Partnership (the "Operating Partnership").
The Company controls the Operating Partnership as the sole
general partner and owner of in excess of 90% of the outstanding
partnership interests ("Units"). Each Unit, other than those held
by the Company, may be exchanged by the holder thereof for Common
Stock. With each such exchange, the number of Units owned by the
Company and, therefore, the Company's percentage interest in the
Operating Partnership, increases. In addition to owning the
Properties and the Land, the Operating Partnership also provides
services associated with leasing, property management, real
estate development, construction and miscellaneous tenant
services (the "Related Businesses") for the Properties. The
Company also provides services associated with the Related
Businesses to third parties through Duke Realty Services Limited
Partnership (the "Services Partnership") on a fee basis.
The Company is an Indiana corporation that was originally
incorporated in the State of Delaware in 1985, and reincorporated
in the State of Indiana in 1992. The Company's executive offices
are located at 8888 Keystone Crossing, Suite 1200, Indianapolis,
Indiana 46240, and its telephone number is (317) 574-3531.
USE OF PROCEEDS
The Company will not realize any cash proceeds from the sale
of the Sale Shares by the Selling Shareholder.
RESTRICTIONS ON OWNERSHIP OF SHARES
For the Company to qualify as a REIT for federal income tax
purposes, no more than 50% in value of its outstanding capital
shares may be owned, directly or indirectly, by five or fewer
individuals (as defined in the law to include certain entities)
during the last half of a taxable year or during a proportionate
part of a shorter taxable year, and the Common Stock must also be
beneficially owned by 100 or more persons during at least 335
years of a taxable year or during a proportionate part of a
shorter taxable year. Because the Company expected to continue to
qualify as a REIT, the Amended and Restated Articles of
Incorporation of the Company contain a restriction intended to
ensure compliance with these requirements which authorizes, but
does not require, the board of directors to refuse to give effect
to a transfer of Common Stock which, in its opinion, might
jeopardize the status of the Company as a REIT. This provision
also renders null and void any purported acquisition of shares
which would result in the disqualification of the Company as a
REIT. The provision also gives the board of directors the
authority to take such actions as it deems advisable to enforce
the provision. Such actions might include, but are not limited
to, refusing to give effect to, or seeking to enjoin, a transfer
which might jeopardize the Company's status as a REIT. The
provision also requires any shareholder to provide the Company
such information regarding his direct and indirect ownership of
Common Stock as the Company may reasonably require.
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FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following summary of material Federal income tax
considerations relevant to the Company is based upon current law,
is not exhaustive of all possible tax considerations, does not
include a detailed discussion of any state, local, or foreign tax
considerations and does not purport to deal with all aspects of
taxation that may be relevant to an investor in light of his or
her particular circumstances or to certain types of investors
(including insurance companies, tax exempt entities, financial
institutions or broker dealers, foreign corporations and persons
who are not citizens or residents of the United States) who are
subject to special treatment under the Federal income tax laws.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH HIS OR
HER OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO
HIM OR HER OF THE PURCHASE, OWNERSHIP AND SALE OF COMMON STOCK IN
AN ENTITY ELECTING TO BE TAXED AS A REIT, INCLUDING THE FEDERAL,
STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF SUCH
PURCHASE, OWNERSHIP, SALE AND ELECTION AND OF POTENTIAL CHANGES
IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY
General. The Company expects to continue to be taxed as a
REIT for Federal income tax purposes. Management believes that
the Company was organized and has operated in such a manner as to
meet the requirements for qualification and taxation as a REIT
under the Internal Revenue Code of 1986, as amended (the "Code"),
and that the Company intends to continue to operate in such a
manner. No assurance, however, can be given that the Company will
continue to operate in a manner so as to remain qualified as a
REIT.
In the opinion of Bose McKinney & Evans which has acted as
counsel to the Company ("Counsel"), assuming the Company was
organized in conformity with and has satisfied the requirements
for qualification and taxation as a REIT under the Code for each
of its taxable years from and including the first year for which
the Company made the election to be taxed as a REIT, and the
assumptions and representations referred to below are true, the
proposed methods of operation of the Company, the Operating
Partnership and the Services Partnership will permit the Company
to continue to qualify to be taxed as a REIT for its current and
subsequent taxable years. This opinion is based upon certain
assumptions relating to the organization and operation of Duke
Services, Inc. ("DSI"), the Operating Partnership and the
Services Partnership and is conditioned upon certain
representations made by Company personnel and affiliates as to
certain factual matters relating to the Company's past operations
and the intended manner of future operation of the Company, the
Operating Partnership, and the Services Partnership. The opinion
is further based upon a letter ruling received by the Company
from the IRS dated September 30, 1994, which concluded that the
Company's and the Operating Partnership's distributive shares of
the gross income of the Services Partnership will be in
proportion to their respective percentage shares of the capital
interests of the partners of the Services Partnership. Counsel is
not aware of any facts or circumstances which are inconsistent
with these assumptions and representations. Unlike a tax ruling,
an opinion of counsel is not binding upon the IRS, and no
assurance can be given that the IRS will not challenge the status
of the Company as a REIT for Federal income tax purposes. The
Company's qualification and taxation as a REIT has depended and
will depend upon, among other things, the Company's ability to
meet on a continuing basis, through ownership of assets, actual
annual operating results, receipt of qualifying real estate
income, distribution levels and diversity of stock ownership, the
various qualification tests imposed under the Code discussed
below. Counsel will not review compliance with these tests on a
periodic or continuing basis. Accordingly, no assurance can be
given respecting the satisfaction of such tests. See "Taxation of
the Company - Failure to Qualify."
The following is a general summary of the Code sections
which govern the Federal income tax treatment of a REIT and its
shareholders. These sections of the Code are highly technical and
complex. This summary is qualified in its entirety by the
applicable Code provisions, Treasury Regulations, and
administrative and judicial interpretations thereof as currently
in effect.
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So long as the Company qualifies for taxation as a REIT and
distributes at least 95% of its REIT taxable income (computed
without regard to net capital gain or the dividends paid
deduction) for its taxable year to its shareholders, it will
generally not be subject to Federal income tax with respect to
income which it distributes to its shareholders. However, the
Company may be subject to Federal income tax under certain
circumstances, including taxes at regular corporate rates on any
undistributed REIT taxable income, the "alternative minimum tax"
on its items of tax preference and taxes imposed on income and
gain generated by certain extraordinary transactions.
Requirements for Qualification. The Code defines a REIT as a
corporation, trust or association: (1) which is managed by one or
more trustees or directors; (2) the beneficial ownership of which
is evidenced by transferable shares or by transferable
certificates of beneficial interest; (3) which would be taxable
as a domestic corporation but for Sections 856 through 859 of the
Code; (4) which is neither a financial institution nor an
insurance company subject to certain provisions of the Code; (5)
which has the calendar year as its taxable year; (6) the
beneficial ownership of which is held by 100 or more persons; (7)
during the last half of each taxable year not more than 50% in
value of the outstanding stock of which is owned, directly or
indirectly, by five or fewer individuals (as defined in the Code
to include certain entities); and (8) which meets certain income
and assets tests, described below. The Company believes it
currently satisfies all requirements.
Income Tests. In order to qualify as a REIT, there are three
gross income tests that must be satisfied annually. For purposes
of these tests, the Company is deemed to be entitled to a share
of the gross income attributable to its proportionate interest in
any partnerships in which it holds an interest. First, at least
75% of the Company's gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived
directly or indirectly from investments relating to real property
(including "rents from real property," gain from the sale of real
property and, in certain circumstances, interest) or from
qualified types of temporary investments. Second, at least 95% of
the Company's gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived
from the same items which qualify under the 75% income test or
from dividends, interest and gain from the sale or disposition of
stock or securities, or from any combination of the foregoing.
Third, less than 30% of the Company's gross income (including
gross income from prohibited transactions) must be derived from
gain in connection with the sale or other disposition of stock or
securities held for less than one year, property in a prohibited
transaction, and real property held for less than four years
(other than involuntary conversions and foreclosure property).
Rents received by the Company will qualify as "rents from
real property" in satisfying the gross income tests for a REIT
described above only if several conditions (related to the
relationship of the tenant to the Company, the method of
determining the rent payable and nature of the property leased)
are met. The Company does not anticipate receiving rents in
excess of a de minimis amount that fail to meet these conditions.
Finally, for rents received to qualify as "rents from real
property," the Company generally must not operate or manage the
property or furnish or render services to tenants, other than
through an "independent contractor" that is adequately
compensated and from whom the Company derives no income;
provided, however, that the Company may perform services "usually
or customarily rendered" in connection with the rental of space
for occupancy only and not otherwise considered "rendered to the
occupant" ("Permissible Services").
The Company provides certain management, development,
construction and other tenant-related services (collectively,
"Real Estate Services") with respect to the Properties through
the Operating Partnership, which is not an independent
contractor. Management believes that the Real Estate Services
provided to tenants by the Operating Partnership are Permissible
Services. To the extent Real Estate Services to tenants do not
constitute Permissible Services, such services are performed by
independent contractors.
The Company derives a portion of its income from the
Operating Partnership's interest as a limited partner in the
Services Partnership and its ownership of DSI which is a general
partner of the Services Partnership. The Services Partnership
receives fees for Real Estate Services with respect to properties
that are not owned directly by the Operating Partnership and fees
in consideration for the performance of management and
administrative services with respect to Properties not entirely
owned by the Operating Partnership. All or a portion of such
management and administrative fees will also not qualify as
"rents from real property" for purposes of the 75% or 95% gross
income tests. Pursuant to
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Treasury Regulations, a partner's capital interest in a
partnership determines its proportionate interest in the
partnership's gross income from partnership assets for purposes
of the 75% and 95% gross income tests. For this purpose, the
capital interest of a partner is determined by dividing its
capital account by the sum of all partners' capital accounts. The
partnership agreement of the Services Partnership provides,
however, for varying allocations of income which differ from
capital interests, subject to certain limitations on the
aggregate amount of gross income which may be allocated to the
Operating Partnership and DSI. The Company has obtained a letter
ruling from the IRS that allocations according to capital
interests are proper for applying the 75% and 95% gross income
tests. Thus, for purposes of these gross income tests, the
Services Partnership allocates its gross income to the Operating
Partnership and DSI based on their respective shares of the
Services Partnership's capital accounts. Although certain of the
fees allocated from the Services Partnership do not qualify under
the 75% or 95% gross income tests as "rents from real property,"
the Company believes that the aggregate amount of such fees (and
any other non-qualifying income) allocated to the Company in any
taxable year has not and will not cause the Company to exceed the
limits on non-qualifying income under the 75% or 95% gross income
tests described above.
If the Company fails to satisfy one or both of the 75% or
95% gross income tests for any taxable year, it may nevertheless
qualify as a REIT for such year if it is entitled to relief under
certain provisions of the Code. It is not possible, however, to
state whether in all circumstances the Company would be entitled
to the benefit of these relief provisions. Even if these relief
provisions apply, a tax would be imposed on certain excess net
income.
Asset Tests. In order for the Company to maintain its
qualification as a REIT, at the close of each quarter of its
taxable year, it must also satisfy three tests relating to the
nature of its assets. First, at least 75% of the value of the
Company's total assets must be represented by "real estate
assets," cash, cash items, and government securities. Second, not
more than 25% of the Company's total assets may be represented by
securities other than those in the 75% assets class. Third, of
the assets held in securities other than those in the 75% assets
class, the value of any one issuer's securities owned by the
Company may not exceed 5% of the value of the Company's total
assets, and the Company may not own more than 10% of any one
issuer's outstanding voting securities (excluding securities of a
qualified REIT subsidiary [as defined in the Code] or another
REIT).
The Company is deemed to directly hold its proportionate
share of all real estate and other assets of the Operating
Partnership as well as its proportionate share of all assets
deemed owned by the Operating Partnership and DSI through their
ownership of partnership interests in the Services Partnership
and other partnerships. As a result, management believes that
more than 75% of the Company's assets are real estate assets. In
addition, management does not expect the Company to hold (1) any
securities representing more than 10% of any one issuer's voting
securities other than DSI, which is a qualified REIT subsidiary,
nor (2) securities of any one issuer exceeding 5% of the value of
the Company's gross assets (determined in accordance with
generally accepted accounting principles).
Annual Distribution Requirements. The Company, in order to
qualify as a REIT, generally must distribute dividends (other
than capital gain dividends) to its shareholders in an amount at
least equal to (A) the sum of (i) 95% of the Company's "REIT
taxable income" (computed without regard to the dividends paid
deduction and the Company's net capital gain), and (ii) 95% of
the net income (after tax), if any, from foreclosure property,
minus (B) the sum of certain items of non-cash income. To the
extent that the Company does not distribute all of its net
capital gain or distributes at least 95%, but less than 100%, of
its "REIT taxable income," as adjusted, it will be subject to tax
on the undistributed amount at regular capital gains and ordinary
corporate tax rates. Furthermore, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85%
of its REIT ordinary income for such year, (ii) 95% of its REIT
net capital gain income for such year, and (iii) any
undistributed taxable income from prior periods, the Company will
be subject to regular capital gains and ordinary corporate tax
rates on undistributed income and also may be subject to a 4%
excise tax on undistributed income in certain events. The Company
believes that it has made and intends to continue to make timely
distributions sufficient to satisfy the annual distribution
requirements. In this regard, the partnership agreement of the
Operating Partnership authorizes the Company, as general partner,
to take such steps as may be necessary to cause the Operating
Partnership to distribute to its partners an amount sufficient to
permit the Company to meet these distribution requirements. It is
possible, however, that the Company, from time to time, may not
have sufficient cash or other liquid assets to meet the 95%
distribution requirement due primarily to the expenditure
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of cash for nondeductible expenses such as principal amortization
or capital expenditures. In such event, the Company may borrow or
may cause the Operating Partnership to arrange for short-term or
other borrowing to permit the payment of required dividends or
pay dividends in the form of taxable stock dividends. If the
amount of nondeductible expenses exceeds non-cash deductions, the
Operating Partnership may refinance its indebtedness to reduce
principal payments and borrow funds for capital expenditures.
Failure to Qualify. If the Company fails to qualify for
taxation as a REIT in any taxable year, the Company will be
subject to tax (including any applicable corporate alternative
minimum tax) on its taxable income at regular corporate rates.
Distributions to shareholders in any year in which the Company
fails to qualify will not be required to be made and, if made,
will not be deductible by the Company. Unless entitled to relief
under specific statutory provisions, the Company also will be
disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. It is not
possible to state whether in all circumstances the Company would
be entitled to such statutory relief.
TAX ASPECTS OF THE COMPANY'S INVESTMENTS IN PARTNERSHIPS
Effect of Tax Status of Operating Partnership and Services
Partnership and Other Partnerships on REIT Qualification. All of
the Company's investments are through DSI and the Operating
Partnership, which in turn hold interests in other partnerships,
including the Services Partnership. The Company believes that the
Operating Partnership, and each other partnership in which it
holds an interest, is properly treated as a partnership for tax
purposes (and not as an association taxable as a corporation).
If, however, the Operating Partnership, the Services Partnership
or any of the other partnerships were treated as an association
taxable as a corporation, the Company would cease to qualify as a
REIT.
Tax Allocations with Respect to the Properties. The
Operating Partnership was formed by way of contributions of
appreciated property (including certain of the Properties) to the
Operating Partnership. When property is contributed to a
partnership in exchange for an interest in the partnership, the
partnership generally takes a carryover basis in that property
for tax purposes equal to the adjusted basis of the contributing
partner in the property, rather than a basis equal to the fair
market value of the property at the time of contribution (this
difference is referred to as "Book Tax Difference"). The
partnership agreement of the Operating Partnership requires
allocations of income, gain, loss and deduction with respect to a
contributed Property be made in a manner consistent with the
special rules of Section 704(c) of the Code and the regulations
thereunder, which will tend to eliminate the Book Tax Differences
with respect to the contributed Properties over the life of the
Operating Partnership. However, because of certain technical
limitations, the special allocation rules of Section 704(c) may
not always entirely eliminate the Book Tax Differences on an
annual basis or with respect to a specific taxable transaction
such as a sale. Thus, the carryover basis of the contributed
Properties in the hands of the Operating Partnership could cause
the Company to be allocated lower amounts of depreciation and
other deductions for tax purposes than would be allocated to the
Company if all Properties were to have a tax basis equal to their
fair market value at the time of contribution. The foregoing
principles also apply in determining the earnings and profits of
the Company for purposes of determining the portion of
distributions taxable as dividend income. The application of
these rules over time may result in a higher portion of
distributions being taxed as dividends than would have occurred
had the Company purchased its interests in the Properties at
their agreed values.
Taxation of Taxable Domestic Shareholders. As long as the
Company qualifies as a REIT, distributions made to the Company's
taxable domestic shareholders out of current or accumulated
earnings and profits (and not designated as capital gain
dividends) will be taken into account by them as ordinary income
and will not be eligible for the dividends received deduction for
corporations. Distributions that are designated as capital gain
dividends will be taxed as long-term capital gains (to the extent
they do not exceed the Company's actual net capital gain for the
taxable year) without regard to the period for which the
shareholder has held its stock. However, corporate holders may be
required to treat up to 20% of certain capital gain dividends as
ordinary income.
Distributions in excess of current and accumulated earnings
and profits will not be taxable to a holder to the extent that
they do not exceed the adjusted basis of the holder's shares, but
rather will reduce the adjusted basis of such
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shares. To the extent that such distributions exceed the adjusted
basis of a holder's shares, they will be included in income as
long-term capital gain assuming the shares are a capital asset in
the hands of the holder. In addition, any dividend declared by
the Company in October, November or December of any year payable
to a shareholder of record on a specified date in any such month
shall be treated as both paid by the Company and received by the
shareholder on December 31 of such year; provided that the
dividend is actually paid by the Company during January of the
following calendar year. Shareholders may not include in their
individual income tax returns any net operating losses or capital
losses of the Company.
In general, a domestic shareholder will realize capital gain
or loss on the disposition of common stock equal to the
difference between (i) the amount of cash and the fair market
value of any property received on such disposition and (ii) the
shareholder's adjusted basis of such common stock. Such gain or
less generally will constitute long-term capital gain or loss if
the shareholder has held such shares for more than one year.
Loss upon a sale or exchange of common stock by a shareholder who
has held such common stock for six months or less (after applying
certain holding period rules) will be treated as a long-term
capital loss to the extent of distributions from the Company
required to be treated by such shareholder as long-term capital
gain.
TAXATION OF TAX-EXEMPT SHAREHOLDERS
Tax-exempt entities, including qualified employee pension
and profit sharing trusts and individual retirement accounts
("Exempt Organizations"), generally are exempt from federal
income taxation. However, they are subject to taxation on their
unrelated business taxable income ("UBTI"). While many
investments in real estate generate UBTI, the IRS has issued a
published ruling that dividend distributions from a REIT to an
exempt employee pension trust do not constitute UBTI, provided
that the shares of the REIT are not otherwise used in unrelated
trade or business of the exempt employee pension trust. Based on
that ruling, amounts distributed by the Company to Exempt
Organizations generally should not constitute UBTI. However, if
an Exempt Organization finances its acquisitions of the common
shares with a debt, a portion of its income from the Company will
constitute UBTI pursuant to the "debt-financed property" rules.
Furthermore, social clubs, voluntary employee benefit
associations, supplemental unemployment benefit trusts, and
qualified group legal services plans that are exempt from
taxation under paragraphs (7), (9), (17), and (20), respectively,
of Code section 501(c) are subject to different UBTI rules, which
generally will require them to characterize distributions from
the Company as UBTI.
In addition, in certain circumstances, a pension trust that
owns more than 10% of the Company's shares is required to treat a
percentage of the dividends from the Company as UBTI (the "UBTI
Percentage"). The UBTI percentage is the gross income derived by
the Company from an unrelated trade or business (determined as if
the Company were a pension trust) divided by the gross income of
the Company for the year in which the dividends were paid. The
UBTI rule applies to a pension trust holding more than 10% of the
Company's stock only if (i) the UBTI Percentage is at least 5%,
(ii) the Company qualifies as a REIT by reason of the
modification of the "five or fewer" stock ownership requirement
that allows the beneficiaries of the pension trust to be treated
as holding shares of the Company in proportion to their actuarial
interests in the pension trust, and (iii) either (A) one pension
trust owns more than 25% of the value of the Company's shares or
(B) a group of pension trusts individually holding more than 10%
of the value of the Company's shares collectively owns more than
50% of the value of the Company's shares.
BACKUP WITHHOLDING
The Company will report to its domestic shareholders and the
IRS the amount of dividends paid during each calendar year, and
the amount of tax withheld, if any. Under the backup withholding
rules, a shareholder may be subject to backup withholding at the
rate of 31% with respect to dividends paid unless such holder (a)
is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact, or (b) provides a
taxpayer identification number, certifies as to no loss of
exemption from backup withholding, and otherwise complies with
applicable requirements of the backup withholding rules. A
shareholder that does not provide the Company with his
- 9 -
correct taxpayer identification number may also be subject to
penalties imposed by the IRS. Any amount paid as backup
withholding will be creditable against the shareholder's income
tax liability. In addition, the Company may be required to
withhold a portion of capital gain distributions made to any
shareholders who fail to certify their non-foreign status to the
Company.
The Treasury Department recently issued proposed regulations
regarding the withholding and information reporting rules
discussed above. In general, the proposed regulations do not
alter the substantive withholding requirements but unify current
certification procedures and forms, and clarify and modify
reliance standards. If finalized in their current form, the
proposed regulations would generally be effective for payments
made after December 31, 1997, subject to certain transition
rules.
TAXATION OF NON-U.S. SHAREHOLDERS
The rules governing U.S. Federal income taxation of
nonresident alien individuals, foreign corporations, foreign
partnerships and other foreign shareholders (collectively,
"Non-U.S. Shareholders") are complex, and no attempt will be made
herein to provide more than a limited summary of such rules.
Prospective Non-U.S. Shareholders should consult with their own
tax advisors to determine the impact of U.S. Federal, state and
local income tax laws with regard to an investment in common
stock, including any reporting requirements.
Distributions that are not attributable to gain from sales
or exchanges by the Company of U.S. real property interests and
not designated by the Company as capital gain dividends will be
treated as dividends of ordinary income to the extent that they
are made out of current or accumulated earnings and profits of
the Company. Such distributions, ordinarily, will be subject to
a withholding tax equal to 30% of the gross amount of the
distribution unless an applicable tax treaty reduces that tax.
Distributions in excess of current and accumulated earnings and
profits of the Company will not be taxable to a Non-U.S.
Shareholder to the extent that they do not exceed the adjusted
basis of the shareholder's common stock, but rather will reduce
that adjusted basis of such common stock. To the extent that such
distributions exceed the adjusted tax basis of a Non-U.S.
Shareholder's common stock, they will give rise to tax liability
if the Non-U.S. Shareholder would otherwise be subject to tax on
any gain from the sale or disposition of his common stock as
described below (in which case they also may be subject to a 30%
branch profits tax if the shareholder is a foreign corporation).
As a result of a legislative change made by the Small Business
Job Protection Act of 1996, effective for distributions made
after August 20, 1996, the Company is required to withhold 10% of
any distribution in excess of the Company's current accumulated
earnings and profits. Consequently, although the Company intends
to withhold at a rate of 30% of the entire amount of any
distribution, to the extent that the Company does not do so any
portion of a distribution not subject to withholding at a rate of
30% will be subject to withholding at a rate of 10%. However, the
Non-U.S. Shareholder may seek a refund of such amounts from the
IRS if it is subsequently determined that such distribution was,
in fact, in excess of current or accumulated earnings and profits
of the Company, and the amount withheld exceeds the Non-U.S.
Shareholder's United States tax liability, if any, with respect
to the distribution.
For any year in which the Company qualifies as a REIT,
distributions that are attributable to gain from sales or
exchanges by the Company of U.S. real property interests will be
taxed to a Non-U.S. Shareholder under the provisions of the
Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA") at
the normal capital gain rates applicable to domestic shareholders
(subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien
individuals). Also, distributions subject to FIRPTA may be
subject to a 30% branch profits tax in the hands of a corporate
Non-U.S. Shareholder not entitled to treaty relief or exemption.
The Company is required to withhold 35% of any distribution that
is or could be designated by the Company as a capital gain
dividend. The amount withheld is creditable against the Non-U.S.
Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of
common stock generally will not be taxed under FIRPTA if the
Company is a "domestically controlled REIT," defined generally as
a REIT in which at all times during a specified testing period
less than 50% in value of the stock was held directly or
indirectly by foreign persons. The Company believes that it is a
"domestically controlled REIT," and, therefore, that the sale of
common stock will not be
- 10 -
subject to taxation under FIRPTA. If the gain on the sale of
common stock were to be subject to tax under FIRPTA, the Non-U.S.
Shareholder would be subject to the same treatment as domestic
shareholders with respect to such gain (subject to applicable
alternative minimum tax and a special alternative minimum tax in
the case of nonresident alien individuals), and the purchaser of
the common stock would be required to withhold and remit to the
IRS 10% of the purchase price.
STATE AND LOCAL TAXES
The Company or its shareholders or both may be subject to
state, local or other taxation in various state, local or other
jurisdictions, including those in which they transact business or
reside. The tax treatment in such jurisdictions may differ from
the Federal income tax consequences discussed above.
Consequently, prospective shareholders should consult their own
tax advisors regarding the effect of state and local tax laws on
an investment in shares of the Company.
SELLING SHAREHOLDER
The Selling Shareholder is a private charitable foundation
that has received Sale Shares of Common Stock as a gift from a
person who is an officer and director of the Company. The
following table provides the name of and the number of Sale
Shares of Common Stock beneficially owned and offered hereby by
the Selling Shareholder. As the Selling Shareholder may sell all,
some or none of its Sale Shares, no estimate can be made of the
aggregate number of Sale Shares that are to be offered hereby, or
the aggregate number of shares of Common Stock that will be owned
by the Selling Shareholder upon completion of the offering to
which this Prospectus relates.
The Sale Shares offered by this Prospectus may be offered
from time to time by the Selling Shareholder named below:
Number of Sale Shares
Beneficially Owned and
Name Offered Hereby
- ------------------------------ ---------------------
Zink Family Foundation, Inc. (1) 8,521
-----
Total 8,521
=====
- --------------
(1) This entity was created by and received its Sale Shares as a
gift from Darell E. Zink, Jr., an officer and director of the
Company.
PLAN OF DISTRIBUTION
This Prospectus relates to the offer and sale from time to
time of Sale Shares by a person who has received or will receive
Sale Shares without registration. The Company has registered the
Sale Shares for sale to provide the Selling Shareholder with
freely tradeable securities, but registration of such shares does
not necessarily mean that all or any of such shares will be
offered or sold by the Selling Shareholder. The Company will not
receive any proceeds from the offering by the Selling
Shareholder.
The Common Stock is listed on the NYSE.
The Selling Shareholder may from time to time offer the Sale
Shares in one or more transactions (which may involve block
transactions) on the NYSE or otherwise, in special offerings,
exchange distributions or secondary distributions pursuant to and
in accordance with the rules of the NYSE, in the over-the-counter
market, in negotiated
- 11 -
transactions, through the writing of options on the Sale Shares
(whether such options are listed on an options exchange or
otherwise), or a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
The Selling Shareholder may effect such transactions by
selling Sale Shares to or through broker-dealers or through other
agents, and such broker-dealers or agents may receive
compensation in the form of commissions from the Selling
Shareholder, which will not exceed those customary in the types
of transactions involved, and/or the purchasers of Sale Shares
for whom they may act as agent. The Selling Shareholder and any
dealers or agents that participate in the distribution of Sale
Shares may be deemed to be "underwriters" within the meaning of
the Securities Act and any profit on the sale of Sale Shares by
them and any commissions received by any such dealers or agents
might be deemed to be underwriting commissions under the
Securities Act.
In the event of a "distribution" of the shares, the Selling
Shareholder, any selling broker-dealer or agent and any
"affiliated purchasers" may be subject to Regulation M under the
Exchange Act, which may prohibit, with certain exceptions, any
such person from bidding for or purchasing any security which is
the subject of such distribution until his participation in that
distribution is completed. In addition, Regulation M prohibits
certain stabilizing bids or stabilizing purchases for the purpose
of pegging, fixing or stabilizing the price of securities.
In order to comply with the securities laws of certain
states, if applicable, the Sale Shares may be sold only through
registered or licensed brokers or dealers.
LEGAL OPINIONS
The legality of the Securities offered hereby is being
passed upon for the Company by Bose McKinney & Evans,
Indianapolis, Indiana. The description of Federal income tax
matters contained in this Prospectus entitled "Federal Income Tax
Considerations" are also based on the opinion of Bose McKinney &
Evans. John W. Wynne and Darell E. Zink, Jr., officers and
directors of the Company, were partners in Bose McKinney & Evans
through 1987 and 1982, respectively, and were of counsel to that
firm until December, 1990.
EXPERTS
The Consolidated Financial Statements and Financial
Statement Schedule of the Company as of December 31, 1996, and
1995, and for each of the years in the three-year period ended
December 31, 1996, incorporated herein by reference have been
incorporated herein in reliance on the report of KPMG Peat
Marwick LLP, independent auditors, also incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing.
- 12 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration Fee $ 95
Legal and Accounting Fees and Expenses 4,000
Miscellaneous 905
-----
Total $5,000
=====
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is an Indiana corporation. The Company's officers
and directors are and will be indemnified under Indiana law, the
Articles of Incorporation of the Company, and the partnership
agreements of the Operating Partnership and Duke Realty Services
Limited Partnership against certain liabilities. Chapter 37 of
The Indiana Business Corporation Law (the "IBCL") requires a
corporation, unless its articles of incorporation provide
otherwise, to indemnify a director or an officer of the
corporation who is wholly successful, on the merits or otherwise,
in the defense of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, against reasonable
expenses, including counsel fees, incurred in connection with the
proceeding. The Company's Articles of Incorporation do not
contain any provision prohibiting such indemnification.
The IBCL also permits a corporation to indemnify a director,
officer, employee or agent who is made a party to a proceeding
because the person was a director, officer, employee or agent of
the corporation against liability incurred in the proceeding if
(i) the individual's conduct was in good faith and (ii) the
individual reasonably believed (A) in the case of conduct in the
individual's official capacity with the corporation that the
conduct was in the corporation's best interests and (B) in all
other cases that the individual's conduct was at least not
opposed to the corporation's best interests and (iii) in the
case of a criminal proceeding, the individual either (A) had
reasonable cause to believe the individual's conduct was lawful
or (B) had no reasonable cause to believe the individual's
conduct was unlawful. The IBCL also permits a corporation to pay
for or reimburse reasonable expenses incurred before the final
disposition of the proceeding and permits a court of competent
jurisdiction to order a corporation to indemnify a director or
officer if the court determines that the person is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the person met the
standards for indemnification otherwise provided in the IBCL.
The Company's Articles of Incorporation provide for certain
additional limitations of liability and indemnification.
Section 13.01 of the Articles of Incorporation provides that a
director shall not be personally liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its shareholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for
voting for or assenting to an unlawful distribution, or (iv) for
any transaction from which the director derived an improper
personal benefit. Section 13.02 of the Articles of Incorporation
generally provides that any director or officer of the Company or
any person who is serving at the request of the Company as a
director, officer, employee or agent of another entity shall be
indemnified and held harmless by the Company to the fullest
extent authorized by the IBCL against all expense, liability and
loss (including attorneys' fees, judgments, fines certain
employee benefits excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered in
connection with a civil, criminal, administrative or
investigative action, suit or proceeding to which such person is
a party by reason of the person's service with or at the request
of the Company. Section 13.02 of the Articles of Incorporation
also provides such persons with certain rights to be paid by the
Company the expenses incurred in defending any such proceeding in
advance of the final disposition and the right to enforce
indemnification claims against the Company by bringing suit
against the Company.
II-2
The Company's Articles of Incorporation authorize the Company
to maintain insurance to protect itself and any director,
officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against
expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense,
liability or loss under the IBCL.
Each of the partnership agreements for the Operating
Partnership and Duke Realty Services Limited Partnership also
provides for indemnification of the Company and its officers and
directors to substantially the same extent provided to officers
and directors of the Company in its Articles of Incorporation,
and limits the liability of the Company and its officers and
directors to the Operating Partnership and its partners and to
Duke Realty Services Limited Partnership and its partners,
respectively, to substantially the same extent limited under the
Company's Articles of Incorporation.
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration
Statement:
3.1 Amended and Restated Articles of Incorporation of Duke
Realty Investments, Inc., incorporated by reference from Exhibit
3.1 to the Registration Statement on Form S-3 of Duke Realty
Investments, Inc., as amended, File No. 33-61361 (the "1995
Registration Statement").
3.2 Amended and Restated Bylaws of Duke Realty
Investments, Inc., incorporated by reference from Exhibit 3.2 to
the 1995 Registration Statement.
5 Opinion and consent of Bose McKinney & Evans regarding
legality of the securities being registered.
8 Opinion and consent of Bose McKinney & Evans regarding
tax matters.
23 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in
Item 15 above, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby further undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
II-2
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant further undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Indianapolis, State of Indiana, on May 7, 1997.
Duke Realty Investments, Inc.
By: /s/ Darell E. Zink, Jr.
--------------------------
Executive Vice President
Duke Realty Limited Partnership
By: Duke Realty Investments, Inc.
General Partner
By: /s/ Darell E. Zink, Jr.
------------------------
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below on May 7, 1997
by the following persons in the capacities indicated.
Signature Title
- ------------------------- --------
John W. Wynne* Director and Chairman of the
--------------- Board
John W. Wynne
Thomas L. Hefner* Director and President and
----------------- Chief Executive Officer
Thomas L. Hefner (Principal Executive Officer)
Daniel C. Staton* Director and Executive Vice
------------------- President and Chief Operating Officer
Daniel C. Staton (Principal Operating Officer)
Darell E. Zink, Jr.* Director and Executive Vice
------------------- President, Chief Financial
Darell E. Zink, Jr. Officer and Assistant Secretary
(Principal Accounting Officer)
Geoffrey Button* Director
----------------
Geoffrey Button
Ngaire E. Cuneo* Director
----------------
Ngaire E. Cuneo
II-4
Howard L. Feinsand* Director
--------------------
Howard L. Feinsand
John D. Peterson* Director
----------------
John D. Peterson
James E. Rogers* Director
-----------------
James E. Rogers
Jay J. Strauss* Director
---------------
Jay J. Strauss
* By: /s/ Dennis D. Oklak
--------------------
Dennis D. Oklak
Attorney-in-Fact
II-5