SECURITIES AND EXCHANGE COMMISSION
Washington, D C 20549
FORM S-3 REGISTRATION STATEMENT
Under The Securities Act of 1933
DUKE REALTY INVESTMENTS, INC
(Exact name of registrant as specified in its charter)
Indiana 35-1740409
(State or other jurisdiction I.R.S. Employer
of incorporation or organization) Identification No.)
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
(317) 574-3531
(Address, including zip code, and
telephone number, including area code,
of principal executive offices)
Dennis D. Oklak
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
(317) 574-3531
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
Alan W. Becker, Esq.
Bose McKinney & Evans
135 North Pennsylvania Street, Suite 2700
Indianapolis, Indiana 46204
(317) 684-5000
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. / X /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price Fee
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Common Stock, $.01
par value 211,475 $24.72 $5,227,662 $1,542.16
Total 211,475 $5,227,662 $1,542.16
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(1) Estimated using April 9, 1998 data solely for the purpose of calculating
the registration fee pursuant to Rule 457(c).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED APRIL 14, 1998
PROSPECTUS
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[LOGO]
211,475 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
persons ("Selling Shareholders") who received or will receive
such shares in exchange for units of limited partnership
interest ("Units") in Duke Realty Limited Partnership (the
"Operating Partnership"), of which the Company is the sole
general partner. See "Selling Shareholders." The Units were
issued in connection with the reorganization of the Company in
1993 and subsequent private placements. The registration of the
shares of Common Stock to which this Prospectus relates
("Exchange Shares") does not necessarily mean that any of such
shares will be sold by any Selling Shareholders. The Company
did not realize any cash proceeds from the exchange of Units
for Common Stock and will not realize any proceeds from the
sale of the Common Stock by the Selling Shareholders. In
accordance with the policy of the Company's Board of Directors,
DMI Partnership, an affiliate of the Company is not a Selling
Shareholder, and none of the Selling Shareholders to which this
Prospectus relates is an executive officer of the Company.
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 Shareholders from time to time may offer and
sell Exchange Shares held by them directly or through agents or
broker-dealers on terms to be determined at the time of sale.
See "Plan of Distribution." Each of the Selling Shareholders
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 Shareholders and any agents or broker-dealers
that participate with the Selling Shareholders in the
distribution of Exchange Shares may be deemed to be
"underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and any commissions
received by them and any profit on the resale of the Exchange
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.
----------------------------
The date of this Prospectus is , 1998.
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.
---------------------
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 Shareholders 12
Plan of Distribution 13
Legal Opinions 14
Experts 14
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, 1997.
2. The Company's Current Reports on Form 8-K (file no. 1-9044) filed
February 26, 1998 and March 27, 1998.
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 previouslyfiled 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,
the Operating Partnership. The Company controls the Operating
Partnership as the sole general partner and owner of in excess
of 85% of the outstanding Units. Each Unit 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,
will increase. 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 and owners of indirectly owned properties 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 proceeds from the sale
of the Common Stock by the Selling Shareholders.
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 days 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.
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of material federal income tax
considerations relevant to the Company and an investor in
shares of Common Stock is based upon current law, is not
exhaustive of all possible tax considerations, does not include
a detailed description of any state, local, or foreign tax
considerations, and does not describe all of the aspects of
Federal income taxation that may be relevant to a prospective
shareholder in light of his or her particular circumstances or
to certain types of shareholders (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)
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subject to special treatment under the federal income tax laws.
Holders of Units intending to exchange their Units for shares
of Common Stock are urged to consult with their own tax
advisors with respect to Federal, state, local and other tax
laws applicable to their specific situations. As used in this
section, the term "Company" refers solely to Duke Realty
Investments, Inc.
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 ACQUISITION, OWNERSHIP AND SALE OF COMMON
STOCK IN AN ENTITY ELECTING TO BE TAXED AS A REAL ESTATE
INVESTMENT TRUST, INCLUDING THE FEDERAL, STATE AND LOCAL TAX
CONSEQUENCES OF SUCH ACQUISITION, 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 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 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 the Company's receipt of a letter
ruling 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.
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 gains 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
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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
two 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.
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 material services
provided to tenants by the Operating Partnership are
Permissible Services. To the extent services to tenants do not
constitute Permissible Services, such services are performed by
independent contractors.
Under the Taxpayer Relief Act of 1997 (the "1997 Act"), in
determining whether a REIT satisfies the income tests, a REIT's
rental income from a property will not cease to qualify as
"rents from real property" merely because the REIT performs
services for a tenant other than permitted customary services
if the amount that the REIT is deemed to have received as a
result of performing impermissible services does not exceed one
percent of all amounts received directly or indirectly by the
REIT with respect to such property. The amount that a REIT
will be deemed to have received for performing impermissible
services is at least 150% of the direct cost to the REIT of
providing those services.
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 that are not entirely owned by the Operating
Partnership. All or a portion of such fees will not qualify as
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"rents from real property" for purposes of the 75% or 95% gross
income tests. Pursuant to 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
capital interests in the Services Partnership. 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. Under the 1997 Act, certain non-cash
income, including income from cancellation of indebtedness and
original issue discount, will be excluded from income in
determining the amount of dividends that a REIT is required to
distribute. In addition, a REIT may elect to retain and pay
income tax on any net long-term capital gains and require its
shareholders to include such undistributed net capital gains in
their income. If a REIT made such an election, the REIT's
shareholders would receive a tax credit attributable to their
share of capital gains tax paid by the REIT on the
undistributed net capital gain that was included in the
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shareholders' income, and such shareholders would receive an
increase in the basis of their shares in the amount of
undistributed net capital gain included in their income reduced
by the amount of the credit. 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
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. The
1997 Act contains a number of technical provisions that reduce
the risk that a REIT will inadvertently fail to qualify as a
REIT.
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 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 (i) 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, and (ii)
possibly to be allocated taxable gain in the event of a sale of
such contributed Properties in excess of the economic or book
income allocated to the Company as a result of such sale. 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.
- 8 -
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As long as the Company qualifies as a REIT, dividend 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. 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.
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 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 (or short-term capital gain if
the shares have been held for one year or less) assuming the
shares are a capital asset in the hands of the holder.
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. Under the
1997 Act, for gains realized after July 28, 1997, and subject
to certain exceptions, the maximum rate of tax on net capital
gains of individuals, trusts and estates from the sale or exchange
of assets held for more than 18 months has been reduced to 20%,
and the maximum rate is reduced to 18% for assets acquired after
December 31, 2000 and held for more than five years. For
taxpayers who would be subject to a maximum tax rate of 15%,
the rate on net capital gains is reduced to 10%, and effective
for taxable years commencing after December 31, 2000, the rate
is reduced to 8% for assets held for more than five years. The
maximum rate for net capital gains attributable to the sale of
depreciable real property held for more than 18 months is 25%
to the extent of the deductions for depreciation with respect
to such property. Long-term capital gain allocated to a
shareholder by the Company will be subject to the 25% rate to
the extent that the gain does not exceed depreciation on real
property sold by the Company. The maximum rate of capital gains
tax for capital assets held more than one year but not more
than 18 months remains at 28%. The taxation of capital gains of
corporations was not changed by the 1997 Act. 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 general UBTI, the IRS has issued a
publishing 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 an
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 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
- 9 -
Company were a pension trust) divided by the gross income of
the Company for the year in which the dividends are 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 of (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
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 issues 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.
Shareholders 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% on 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
- 10 -
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. Shareholders' 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
corporation 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 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.
- 11 -
SELLING SHAREHOLDERS
As described elsewhere herein, the Selling Shareholders are persons
who have received or will receive Exchange Shares of Common
Stock in exchange for Units. The following table provides the
names of and the number of Exchange Shares of Common Stock
beneficially owned and offered hereby by each Selling
Shareholder. As the Selling Shareholders may sell all, some or
none of their Exchange Shares, no estimate can be made of the
aggregate number of Exchange Shares that are to be offered
hereby, or the aggregate number of shares of Common Stock that
will be owned by each Selling Shareholder upon completion of
the offering to which this Prospectus relates.
The Exchange Shares offered by this Prospectus may be offered from
time to time by the Selling Shareholders named below:
Number of Exchange
Shares Beneficially
Owned and
NAME (1) Offered Hereby
- ----------------------------------- -------------------------
Steven A. Lydy 90,348
2740 Partnership 33,194
Daniel Cantor 20,426
Stanbery Partnership 16,600
Lori Fenner 10,000
Unibrus, Ltd. 6,154
Gary C. Fulmer 4,148
Mark R. Wilkow Revocable Trust 3,769
Clifton J. Wilkow Revocable Trust 3,732
David Langsner 3,188
Richard L. Nowak 2,852
Ray Strutner 2,490
Sandy Acker 2,094
David and Gail Horberg 2,094
Jerry Hymowitz 2,094
Steven V. Ciuni 2,000
Bruce Rodin 1,860
Peter Eastwood 1,658
Ronald G. Neff 1,000
Ursuline Academy 550
William W. Wilkow Marital Trust 478
Fifth Third Bank as Trustee for Greater
Cincinnati Foundation 217
David and Ruth Langsner 210
Daniel W. Weil 209
St. Mary's Church 44
Nachum Langsner 30
E. Jordan Wilkow Trust #2 12
Gregg J. Wilkow Trust #2 12
Brett M. Wilkow Trust #2 12
-------
Total 211,475
=======
- ---------
(1) Selling Shareholders that are entities may distribute
Exchange Shares to their equity owners prior to sale under
this prospectus. Any such persons will be identified by a
supplement to this prospectus.
- 12 -
PLAN OF DISTRIBUTION
This Prospectus relates to the offer and sale from time to
time of Exchange Shares by persons who have received or will
receive Exchange Shares without registration. The Company has
registered the Exchange Shares for sale to provide the Selling
Shareholders 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
Shareholders. The Company has not and will not receive any
proceeds from the offering by the Selling Shareholders or from
the issuance of the Exchange Shares to holders of Units upon
receiving a notice of exchange (but it will acquire from such
holders the Units tendered for exchange).
Subject to the terms and conditions contained in the
partnership agreement, as amended, of the Operating Partnership
(the "Partnership Agreement"), the Company, as general partner
of the Operating Partnership, has agreed to exchange all or a
portion of the Units held by limited partners in the Operating
Partnership other than the Company for shares of Common Stock
at a ratio determined in accordance with the Partnership
Agreement. Following any such exchange, the Company will become
the owner of the Units so exchanged.
Pursuant to the Partnership Agreement, each Unitholder
wishing to exchange Units for Common Stock must deliver a
notice of exchange to the Company substantially in the form
prescribed by the Partnership Agreement. The notice of exchange
will be effective as to any such Unitholder on a date 10
business days after receipt by the Company of the notice of
exchange.
The Common Stock is listed on the NYSE.
The Selling Shareholders may from time to time offer the
Exchange 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 transactions,
through the writing of options on the Exchange 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 Shareholders may effect such transactions by
selling Exchange 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 Shareholders, which will not exceed those
customary in the types of transactions involved, and/or the
purchasers of Exchange Shares for whom they may act as agent.
The Selling Shareholders and any dealers or agents that
participate in the distribution of Exchange Shares may be
deemed to be "underwriters" within the meaning of the
Securities Act and any profit on the sale of Exchange 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, Selling
Shareholders, any selling broker-dealer or agent and any
"affiliated purchasers" may be subject to Regulation M under
the Exchange Act, which would prohibit, with certain exceptions,
each 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 under the Exchange
Act prohibits certain "stabilizing bids" or "stabilizing purchases"
for the purpose of pegging, fixing or stabilizing the price of
Common Stock in connection with this offering.
At a time a particular offer of Exchange Shares is made, a
prospectus supplement, if required, will be distributed that
will set forth the name or names of any dealers or agents and
any commissions and other terms constituting compensation from
the Selling Shareholders and any other required information.
The Exchange Shares may be sold from time to time at varying
prices determined at the time of sale or at negotiated prices.
- 13 -
In order to comply with the securities laws of certain
states, if applicable, the Exchange Shares may be sold only
through registered or licensed brokers or dealers or, if
required, an exemption from issuerdealer registration is
perfected.
LEGAL OPINIONS
The legality of the Securities offered hereby is being passed
upon for the Company by Bose McKinney & Evans, Indianapolis,
Indiana. The descriptions of Federal income tax matters contained
in this Prospectus entitled "Tax Consequences of Exchange" and
"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 related Schedule of the
Company as of December 31, 1997 and 1996, and for each of the years in
the threeyear period ended December 31, 1997, incorporated herein by
reference, have been incorporated herein in reliance on the
report of KPMG Peat Marwick LLP, independent certified public accountants,
also incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
- 14 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration $ 1,542
Printing Expenses 1,000
Professional Fees and Expenses 11,000
Miscellaneous 2,000
------
Total $15,542
======
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.
II-1
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.
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.
II-2
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 "Prior 1995 Registration Statement"), and amendments thereto
incorporated by reference from the annual report on
Form 10-K of Duke Realty Investments, Inc. for the year
ended December 31, 1997 (the "1997 10-K").
3.2 Amended and Restated Bylaws of Duke Realty Investments,
Inc., incorporated by reference from Exhibit 3.2 to the
Prior 1995 Registration Statement, and amendment
thereto incorporated by reference to the 1997 10-K.
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.
II-3
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) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent posteffective 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-4
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
April 13, 1998.
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
----------------------
Executive Vice President,
Chief Administrative Officer
and Treasurer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed as of
April 13, 1998 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)
Darell E. Zink, Jr.* Director and Executive Vice President,
- ------------------------ Chief Financial Officer and Assistant
Darell E. Zink, Jr. Secretary (Principal Accounting Officer)
Edward T. Baur* Director
- ------------------------
Edward T. Baur
Geoffrey Button* Director
- ------------------------
Geoffrey Button
II-5
Ngaire E. Cuneo* Director
- ------------------------
Ngaire E. Cuneo
Howard L. Feinsand* Director
- ------------------------
Howard L. Feinsand
L. Ben Lytle* Director
- ------------------------
L. Ben Lytle
John D. Peterson* Director
- ------------------------
John D. Peterson
James E. Rogers* Director
- ------------------------
James E. Rogers
Daniel C. Staton* Director
- ------------------------
Daniel C. Staton
Jay J. Strauss* Director
- ------------------------
Jay J. Strauss
By: /s/ Dennis D. Oklak
-------------------
Dennis D. Oklak
Attorney-in-Fact
II-6