-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VmNNkfO7v20Kke8FAK0OTFvqWzujeLewuKd5mszXdwjvJMdzzoNVc8LrLjatULzO oCkU+IcvKgmyJmkXCCJpDw== 0000783280-97-000098.txt : 19971223 0000783280-97-000098.hdr.sgml : 19971223 ACCESSION NUMBER: 0000783280-97-000098 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19971218 ITEM INFORMATION: FILED AS OF DATE: 19971222 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUKE REALTY INVESTMENTS INC CENTRAL INDEX KEY: 0000783280 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 351740409 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-09044 FILM NUMBER: 97742530 BUSINESS ADDRESS: STREET 1: 8888 KEYSTONE CROSSING STE 1200 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 BUSINESS PHONE: 3175743531 8-K 1 8-K - ------------------------------------------------------------------------ - ------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): December 18, 1997 DUKE REALTY INVESTMENTS, INC. (Exact name of registrant as specified in its charter) Indiana 1-9044 35-1740409 (State or jurisdiction of (Commission (I.R.S.Employer incorporation or organization) File Number) Identification No.) 8888 KEYSTONE CROSSING, SUITE 1200 INDIANAPOLIS, INDIANA 46240 (Address of principal executive offices) (Zip Code) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317) 574-3531 Not applicable (Former name or former address, if changed since last report) - ------------------------------------------------------------------------ - ------------------------------------------------------------------------ ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS Exhibit Number Exhibit - ------- ------- 1 Terms Agreement dated December 18, 1997, which is being filed pursuant to Regulation S-K Item 601(b)(1) in lieu of filing the otherwise required exhibit to the registration statement on Form S-3 of the Registrant, file no. 333-04695, under the Securities Act of 1933, as amended (the "Registration Statement"), and which, as this Form 8-K filing is incorporated by reference in the Registration Statement, is set forth in full in the Registration Statement. 8 Tax opinion of Bose McKinney & Evans, including consent, which is being filed pursuant to Regulation S-K Item 601(b)(8) in lieu of filing the otherwise required exhibit to the Registration Statement and which, as this Form 8-K filing is incorporated by reference in the Registration Statement, is set forth in full in the Registration Statement. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DUKE REALTY INVESTMENTS, INC. Date: December 22, 1997 By: /s/ Dennis D. Oklak ------------------------- Dennis D. Oklak Executive Vice President and Chief Administrative Officer -2- EX-1 2 TERMS AGREEMENT DUKE REALTY INVESTMENTS, INC. (an Indiana Corporation) 449,438 Common Shares TERMS AGREEMENT December 18, 1997 TO: Duke Realty Investments, Inc. 8888 Keystone Crossing, Suite 1150 Indianapolis, IN 46240 Attention: Chairman of the Board of Directors Ladies and Gentlemen: We understanding that Duke Realty Investments, Inc., an Indiana corporation (the "Company"), proposes to issue and sell 449,438 shares of common stock (the "Common Stock" (such Common Stock being hereinafter referred to as the "Securities"). Subject to the terms and conditions set forth or incorporated by reference herein, we offer to purchase the Securities at the purchase price set forth below. The Securities shall have the following terms: Title of Securities: Common Stock Number of Shares: 449,438 Public offering price per share: $22.25 Purchase price per share: $21.2487 Number of Option Securities: N/A Underwriter: Legg Mason Wood Walker Incorporated Underwriter's counsel Hunton & Williams Additional terms, if any:(1) Sections 3(o) and 5(h) of the Underwriting Agreement referred to below are inapplicable to this transaction. (2) Section 5(b)(1) of the Underwriting Agreement referred to below is applicable to this transaction only to the extent of items (i) (with respect to the first and second sentences only), (ii), (ix), (xii), (xiii), (xvi), (xvii), (xviii)(with respect to the Company and the Operating Partnership only), (xx), (xxiii),(xxv) (with respect to the Company and the Operating Partnership only) and (xxviii) (with respect to which counsel shall list certain exceptions thereto). (3) Section 5(b)(2) of the Underwriting Agreement referred to below is applicable to this transaction only to the extent of items 5(b)(1)(ix)(with respect to the first and last sentences only), 5(b)(1)(xiii)(with respect to the first clause only), 5(b)(1)(xxiii) and 5(b)(1)(xxiv). (4) In addition to the provisions of Section 9 of the Underwriting Agreement referred to below, Legg Mason Wood Walker Incorporated may terminate this Terms Agreement, by notice to the Company, at any time prior to the Closing Time if there has occurred any material adverse change in the financial markets in the United States or internationally or any outbreak of hostilities or escalation of existing hostilities or other calamity or crisis the effect of which on the financial markets of the United States or internationally is such as to make it, in the judgment of Legg Mason Wood Walker Incorporated, impracticable or inadvisable (i) to commence or continue the offering of the units of Legg Mason REIT Trust, December 1997 Series (the "Trust") to the public or (ii) to enforce contracts for the sale of the units of the Trust. Closing Time, date and location: December 23, 1997, 8:30 a.m., E.S.T. Hunton & Williams 951 East Byrd Street Richmond, Virginia 23219 All the provisions contained in the document attached as Annex A hereto entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership -- Common Stock, Preferred Stock, Depositary Shares and Debt Securities -- Underwriting Agreement" are incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined. 2 Please accept this offer no later than six o'clock P.M. (New York City time) on December 18, 1997 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us. Very truly yours, LEGG MASON WOOD WALKER INCORPORATED BY: /s/ Edmund J. Cashman, Jr. ------------------------- Name: Edmund J. Cashman, Jr. Title:Senior Executive Vice President CONFIRMED AND ACCEPTED: as of the date first above written DUKE REALTY INVESTMENTS, INC. BY: /s/ Dennis D. Oklak ----------------------- Name: Dennis D. Oklak Title: Executive Vice President and Chief Administrative Officer 3 EX-8 3 TAX OPINION OF BOSE MCKINNEY & EVANS BOSE McKINNEY & EVANS 135 North Pennsylvania Street Suite 2700 Indianapolis, Indiana 46204 December 18, 1997 Duke Realty Investments, Inc. 8888 Keystone Crossing, Suite 1200 Indianapolis, Indiana 46240 Gentlemen: We have acted as counsel to Duke Realty Investments, Inc., an Indiana corporation (the "Company"), in connection with the shelf registration by the Company of shares of the Company's common stock ("Common Stock") pursuant to a Registration Statement, file no. 333-04695 (the "Registration Statement"), on Form S-3 under the Securities Act of 1933, as amended. The Company has filed a prospectus supplement (the "Prospectus Supplement") relating to the offering of 449,438 shares of Common Stock. In connection therewith, you have requested our opinion with respect to the Company's continued qualification as a real estate investment trust ("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"). You have also requested our opinion regarding certain United States Federal income tax matters discussed in the Prospectus Supplement. All capitalized terms used herein have their respective meanings as set forth in the Prospectus Supplement and accompanying Prospectus unless otherwise stated. In rendering the opinions stated below, we have examined and relied, with your consent, upon the following: (i) The Prospectus Supplement and the accompanying prospectus; (ii) The First Amended and Restated Agreement of Limited Partnership of the Operating Partnership and subsequent amendments thereto; (iii) The Second Amended and Restated Agreement of Limited Partnership of the Services Partnership; (iv) The Amended and Restated Articles of Incorporation of the Company; and (v) Such other documents, records and instruments as we have deemed necessary in order to enable us to render the opinion referred to in this letter. Duke Realty Investments, Inc. December 18, 1997 Page 2 In our examination of the foregoing documents, we have assumed, with your consent, that (i) all documents reviewed by us are original documents, or true and accurate copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) each party who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are true and correct, (v) all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms and (vi) the Company, the Operating Partnership and the Services Partnership at all times will be organized and operated in accordance with the terms of such documents. We have further assumed the accuracy of the statements and descriptions of the Company's, the Operating Partnership's and the Services Partnership's intended activities as described in the Registration Statement, the Prospectus Supplement and the reports incorporated in the Registration Statement by reference. For purposes of rendering the opinions stated below, we have also assumed, with your consent, the accuracy of the representations contained in the Certificate of Representations dated December 18, 1997 provided to us by the Company, the Operating Partnership and the Services Partnership. These representations generally relate to the classification and operation of the Company as a REIT and the organization and operation of the Operating Partnership and the Services Partnership. Our opinions are further based upon the Company's receipt of a letter ruling from the Internal Revenue Service ("IRS") dated September 30, 1994 which concluded that the Company's and the Operating Partnership's distributive shares of the gross income of the Services Partnership will be in proportion to their respective percentage shares of the capital interests of the partners of the Services Partnership. Based upon and subject to the foregoing, we are of the opinion that: (1) Assuming the Company was organized in conformity with and has satisfied the requirements for qualification and taxation as a REIT under the Code for each of its taxable years from and including the first taxable year for which the Company made the election to be taxed as a REIT, the proposed methods of operation of the Company, the Operating Partnership and the Services Partnership as described in the Registration Statement, the Prospectus Supplement and the reports incorporated in the Registration Statement by reference and as represented by the Company, the Operating Partnership and the Services Partnership will permit the Company to continue to qualify to be taxed as a REIT for its current and subsequent taxable years; and (2) The impact of the Taxpayer Relief Act of 1997 upon the Company and its shareholders and the tax consequences of the ownership of Common Stock will be consistent with the discussion contained in the section entitled "Certain Federal Income Tax Considerations" in the Prospectus Supplement. The opinions set forth in this letter represent our conclusions as to the application of federal income tax laws existing as of the date of this letter to the transactions described herein. We can give no assurance that legislative enactments, administrative changes or court decisions may not be forthcoming that would modify or supersede our opinions. Moreover, there can be no assurance that positions contrary to our opinions will not be taken by the IRS, or that a court considering the issues would not hold contrary to such opinions. Further, the opinions set forth above represent our conclusions based upon the documents, facts and representations referred to above. Any material amendments to such documents, changes in any significant facts or inaccuracy of such representations could affect the opinions referred to herein. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of the facts referred to in this letter. Duke Realty Investments, Inc. December 18, 1997 Page 3 We express no opinion as to any federal income tax issue or other matter except those set forth or confirmed above. We consent to the filing of this opinion with Form 8-K, to the incorporation by reference of this opinion as an exhibit to the registration statement of the Company and Duke Realty Limited Partnership (file no. 333-04695) and any registration statement filed under Rule 462(b) relating to such registration statement and to the reference to our firm under the heading "Legal Matters" in the Prospectus Supplement. Very truly yours, /s/ Bose McKinney & Evans -----END PRIVACY-ENHANCED MESSAGE-----