-----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, KUB2rnPoF/ttNsJ9C2PFck5NiQcA6W212Fdret99ec9LtFs/BxSh9tukAkEXQDC0 chXAR19uKNAvKt7I5e9FLA== 0000783280-99-000004.txt : 19990429 0000783280-99-000004.hdr.sgml : 19990429 ACCESSION NUMBER: 0000783280-99-000004 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990428 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: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: SEC FILE NUMBER: 001-09044 FILM NUMBER: 99603380 BUSINESS ADDRESS: STREET 1: 8888 KEYSTONE CROSSING STREET 2: STE 1200 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 BUSINESS PHONE: 3178086000 MAIL ADDRESS: STREET 1: 8888 KEYSTONE CROSSING STREET 2: STE 1200 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 8-A12B 1 ====================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 --------------------- DUKE REALTY INVESTMENTS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) INDIANA 35-174049 (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 8888 KEYSTONE CROSSING, SUITE 1200 INDIANAPOLIS, INDIANA 46240 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) If this Form relates to the If this Form relates to the registration of a class of securities registration of a class of securities pursuant to Section 12(b) of the pursuant to Section 12(b) of the Exchange Act and is effective Exchange Act and is effective pursuant to General Instruction A.(c), pursuant to General Instruction A.(d) please check the following box /x/ please check the following box / / SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES: 001-09044 SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON TO BE SO REGISTERED WHICH ------------------- EACH CLASS IS TO BE REGISTERED ------------------------------ Common Shares, $.01 par value The New York Stock Exchange, Inc. Series F Preference Shares, Each Share Representing a 1/1,000 Ownership Interest in One Series F Cumulative Redeemable Preferred Share The New York Stock Exchange, Inc. Series H Preference Shares, Each Share Representing a 1/1,000 Ownership Interest in One Series H Cumulative Redeemable Preferred Share The New York Stock Exchange, Inc. SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE ---- ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED ------------------------------------------------------- The securities of Duke Realty Investments, Inc. (the "Registrant") to be registered on The New York Stock Exchange, Inc. are (i) Preference Shares ("Series F Preference Shares"), each representing a one-thousandth (1/1,000) ownership interest in one 8.0% Series F Cumulative Redeemable Preferred Share, $.01 par value, $25.00 liquidation preference ("Series F Preferred Shares") and (ii) Preference Shares ("Series H Preference Shares"), each representing a one-thousandth (1/1,000) ownership interest in one 8.625% Series H Cumulative Redeemable Preferred Share, $.01 par value, $25.00 liquidation preference ("Series H Preferred Shares"). The descriptions of the Preference Shares and the Preferred Shares under the heading "Description of Duke Capital Stock Issued in Connection with the Proposed Merger" set forth in the Joint Proxy Statement and Prospectus for the Annual Meeting of Shareholders of Duke Realty Investments, Inc. and a Special Meeting of the Shareholders of Weeks Corporation which will be filed with the Securities and Exchange Commission pursuant to Rule 424(b) subsequent to the filing of this Form 8-A shall be deemed to be incorporated by reference to this Form 8-A and shall be part hereof as of the date of filing of such document. ITEM 2. EXHIBITS -------- The securities described herein are to be registered on The New York Stock Exchange, Inc. (the "Exchange"), on which other securities of the Registrant are registered. Accordingly, the following exhibits required in accordance with Part I to the instructions as to Exhibits to Form 8-A have been or will be duly filed with the Exchange. 4.1 Form of Articles of Amendment of Registrant's Articles of Incorporation. 4.2 Form of Deposit Agreement among Registrant, American Stock Transfer and Trust Co. and the holders from time to time of certain Preference Shares (which includes as an exhibit the form of Preference Receipt evidencing Preference Shares). SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. DUKE REALTY INVESTMENTS, INC. By: /s/ ---------------------------- Dennis D. Oklak Executive Vice President and Chief Accounting Officer Date: ---------------------------- EX-1 2 Exhibit 1 ARTICLES OF AMENDMENT TO SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF DUKE-WEEKS REALTY CORPORATION The undersigned officer of Duke-Weeks Realty Corporation (the "Corporation"), existing pursuant to the Indiana Business Corporation Law, as amended (the "Act"), desiring to give notice of corporate action effectuating amendment of certain provisions of its Second Amended and Restated Articles of Incorporation, certifies the following facts: ARTICLE I AMENDMENT Section 1. The date of incorporation of the Corporation is March 12, 1992. --------- Section 2. --------- The name of the Corporation following this amendment to the Articles of Incorporation is Duke-Weeks Realty Corporation Section 3. --------- Article of the Second Amended and Restated Articles of -------- Incorporation is amended to add Sections , the exact text of which is set forth in EXHIBIT A hereto. ------- ARTICLE II MANNER OF ADOPTION AND VOTE Section 1. Action by Directors. --------- ------------------- The Board of Directors of the Corporation duly adopted a resolution proposing to amend the terms and provisions of Article of the Second ------ Amended and Restated Articles of Incorporation These resolutions were adopted at a meeting duly held on , 1999 at which a quorum was present. ------- Section 2. Action by Shareholders. --------- ---------------------- Pursuant to I.C. 23-1-25-2(d), the Shareholders of the Corporation were not required to vote with respect to this amendment to the Second Amended and Restated Articles of Incorporation. Section 3. Compliance with Legal Requirements. --------- ---------------------------------- The manner of adoption of the Articles of Amendment and the vote by which they were adopted constitute full legal compliance with the provisions of the Act, the Second Amended and Restated Articles of Incorporation, and the Second Amended and Restated By-Laws of the Corporation. Executed this day of , 1999. ---- ---- ----------------------- Exhibit A 6.10 Series F Preferred Stock. ------------------------ Pursuant to the authority granted under Section 6.01 of the Corporation's Amended and Restated Articles of Incorporation (the "Articles of Incorporation"), the Board of Directors of the Corporation hereby establishes a series of preferred shares designated the 8.00% Series F Cumulative Redeemable Preferred Shares (the "Series F Preferred Stock"), the holders of which shall receive units representing one one-thousandth (1/1,000) of a share (the "Units") of such Series F Preferred Stock, on the following terms: (a) Number. ------ The maximum number of authorized shares of the Series F Preferred Stock shall be 7,400. (b) Relative Seniority. ------------------ In respect of rights to receive dividends and to participate in distributions of payments in the event of any liquidation, dissolution or winding up of the Corporation, the Series F Preferred Stock shall rank (a) senior to any class or series of Equity Stock of the Corporation ranking, as to the payment of dividends or as to the distribution of assets upon liquidation, dissolution or winding up, junior to the Series F Preferred Stock (collectively, "Junior Stock"), (b) senior to any class or series of Equity Stock of the Corporation ranking, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution or winding up, junior to the Series F Preferred Stock (collectively, "Fully Junior Stock"), and (c) on a parity with any class or series of Equity Stock of the Corporation ranking, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share thereof are different from those of the Series F Preferred Stock, if the holders of such class or series of Equity Stock and the Series F Preferred Stock shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution or winding up in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or priority one over the other (collectively, "Parity Stock"). (c) Dividends. --------- (1) The holders of the then outstanding Units shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, cumulative dividends at the rate of $2.00 per share per year, payable in equal amounts of $0.50 per share quarterly in cash on the last day of each January, April, July and October or, if not a Business Day (as hereinafter defined), the next succeeding Business Day. Dividends shall begin to accrue and shall be fully cumulative from the first date on which the pertinent Units of the Series F Preferred Stock are issued and sold and shall first be payable on October 31, 1997 (each such payment date being hereafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"). Dividends shall be payable to holders of record as they appear in the share records of the Corporation at the close of business on the applicable record date (the "Record Date"), which shall be the 15th day of the calendar month in which the applicable Quarterly Dividend Date falls on or such other date designated by the Board of Directors of the Corporation for the payment of dividends that is not more than 50 nor less than 10 days prior to such Quarterly Dividend Date. The amount of any dividend payable for any Dividend Period shorter than a full Dividend Period shall be prorated and computed on the basis of the actual number of days in such period. Dividends paid on the Units in an amount less than the total amount of such dividends at the time accrued and payable on such Units shall be allocated pro rata on a per share basis among all such Unit at the time outstanding. "Business Day" shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close. (2) The amount of any dividends accrued on any Units at any Quarterly Dividend Date shall be the amount of any unpaid dividends accumulated thereon, to and including such Quarterly Dividend Date, whether or not earned or declared, and the amount of dividends accrued on any Units of Series F Preferred Stock at any date other than a Quarterly Dividend Date shall be equal to the sum of the amount of any unpaid dividends accumulated thereon, to and including the last preceding Quarterly Dividend Date, whether or not earned or declared, plus an amount calculated on the basis of the annual dividend rate of $2.00 per Unit for the period after such last preceding Quarterly Dividend Date to and including the date as of which the calculation is made based on the actual number of days in such period. (3) Except as provided in this Section 6.10, the Units will not be entitled to any dividends in excess of full cumulative dividends as described above and shall not be entitled to participate in the earnings or assets of the Corporation, and no interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Units which may be in arrears. (4) Any dividend payment made on the Units shall first be credited against the earliest accrued but unpaid dividend due with respect to such Units which remains payable. (5) If, for any taxable year, the Corporation elects to designate as "capital gain dividends" (as defined in Section 857 of the Code), any portion (the "Capital Gains Amount") of the dividends paid or made available for the year to holders of all classes of shares (the "Total Dividends"), then the portion of the Capital Gains Amount that shall be allocated to the holders of the Units shall equal (i) the Capital Gains Amount multiplied by (ii) a fraction that is equal to (a) the total dividends paid or made available to the holders of the Units of the Series F Preferred Stock for the year over (b) the Total Dividends. (6) No dividends on the Units shall be authorized by the Board of Directors or be paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such authorization, payment or setting apart for payment or provide that such authorization, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such authorization or payment shall be restricted or prohibited by law. Notwithstanding the foregoing, dividends on the Units will accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized. (7) So long as any Units of Series F Preferred Stock remain outstanding, no dividends, except as described in the immediately following sentence, shall be declared or paid or set apart for payment on any class or series of Parity Stock for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Units for all Dividend Periods terminating on or prior to the dividend payment date for such class or series of Parity Stock. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon the Units and all dividends declared upon any other class or series of Parity Stock shall be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Units and accumulated and unpaid on such Parity Stock. (8) So long as any Units of Series F Preferred Stock remain outstanding, no dividends (other than dividends or distributions paid solely in shares of, or options, warrants or rights to subscribe for or purchase shares of, Fully Junior Stock) shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Stock or Fully Junior Stock, nor shall any Junior Stock or Fully Junior Stock be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of any employee incentive or benefit plan of the Corporation or any subsidiary) for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation, directly or indirectly (except by conversion into or exchange for shares of Fully Junior Stock), unless in each case (i) the full cumulative dividends on all outstanding Units of Series F Preferred Stock and any other Parity Stock of the Corporation shall have been or contemporaneously are declared and paid or declared and set apart for payment for all past Dividend Periods with respect to the Units and all past dividend periods with respect to such Parity Stock and (ii) sufficient funds shall have been or contemporaneously are declared and paid or declared and set apart for the payment of the dividend for the current Dividend Period with respect to the Units and the current dividend period with respect to such Parity Stock. (d) Liquidation Rights ------------------ (1) Upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of the Units then outstanding shall be entitled to receive and to be paid out of the assets of the Corporation available for distribution to its shareholders, before any payment or distribution shall be made on any Junior Stock, the amount of $25.00 per Unit, plus accrued and unpaid dividends thereon. (2) After the payment to the holders of the Units of the full preferential amounts provided for in this Section 6.10, any other series or class of Junior Stock or Fully Junior Stock shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid, and the holders of the Units, as such, shall have no right or claim to any of the remaining assets of the Corporation. (3) If, upon any voluntary or involuntary dissolution, liquidation, or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of the Units shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other shares of any class or series of Parity Stock, then such assets, or the proceeds thereof, shall be distributed among the holders of the Units and any such other Parity Stock ratably in accordance with the respective amounts that would be payable on such Units and any such other Parity Stock if all amounts payable thereon were paid in full. (4) Neither a consolidation nor a merger of any other entity into or with the Corporation, a statutory share exchange by the Corporation or a sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation, shall be deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, for the purposes of this Section 6.10 (e) Redemption by the Corporation. ----------------------------- (1) Optional Redemption. ------------------- On and after October 10, 2002, the Corporation may, at its option, redeem at any time all or, from time to time, any part of the Series F Preferred Stock at a price per Unit (the "Redemption Price"), payable in cash, of $25.00, together with all accrued and unpaid dividends to and including the date fixed for redemption (the "Redemption Date"), without interest, to the full extent the Company has funds legally available therefor. The Series F Preferred Stock shall have no stated maturity and will not be subject to any sinking fund or mandatory redemption provisions. (2) Procedures of Redemption. ------------------------ (i) Notice of redemption will be given by publication in a newspaper of general circulation in the City of New York, such publication to be made once a week for two successive weeks commencing not less than 30 nor more than 90 days prior to the Redemption Date. Notice of any redemption will also be mailed by the registrar, postage prepaid, not less than 30 nor more than 90 days prior to the Redemption Date, addressed to each holder of record of the Units to be redeemed at the address set forth in the share transfer records of the registrar. Any notice mailed in the manner provided herein shall be conclusively presumed to have been given on the date mailed whether or not the holder received the notice. No failure to give such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Units except as to the holder to whom the Corporation has failed to give notice or except as to the holder to whom notice was defective. In addition to any information required by law or by the applicable rules of any exchange upon which Units may be listed or admitted to trading, such notice shall state: (a) the Redemption Date; (b) the Redemption Price; (c) the number of Units of Series F Preferred Stock to be redeemed; (d) the place or places where certificates for such Units are to be surrendered for payment of the Redemption Price; and (e) that dividends on the Units to be redeemed will cease to accumulate on the Redemption Date. If fewer than all of the Units of Series F Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of Units of Series F Preferred Stock to be redeemed from such holder. (ii) If notice has been mailed in accordance with subparagraph (e)(2)(i) above and provided that on or before the Redemption Date specified in such notice all funds necessary for such redemption shall have been irrevocably set aside by the Corporation, separate and apart from its other funds in trust for the pro rata benefit of the holders of the Units so called for redemption, so as to be, and to continue to be available therefor, then, from and after the Redemption Date, dividends on the Units so called for redemption shall cease to accumulate, and said Units shall no longer be deemed to be outstanding and shall not have the status of Units of Series F Preferred Stock and all rights of the holders thereof as shareholders of the Corporation (except the right to receive the Redemption Price) shall cease. Upon surrender, in accordance with such notice, of the certificates for any Units of Series F Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and the notice shall so state), such Units of Series F Preferred Stock shall be redeemed by the Corporation at the Redemption Price. In case fewer than all the Units of Series F Preferred Stock represented by any such certificate are redeemed, a new certificate or certificates shall be issued presenting the unredeemed Units of Series F Preferred Stock without cost to the holder thereof. (iii) Any funds deposited with a bank or trust company for the purpose of redeeming Units of Series F Preferred Stock shall be irrevocably deposited except that: (A) the Corporation shall be entitled to receive from such bank or trust company the interest or other earnings, if any, earned on any money so deposited in trust, and the holders of any Units redeemed shall have no claim to such interest or other earnings; and (B) any balance of monies so deposited by the Corporation and unclaimed by the holders of the Units entitled thereto at the expiration of two years from the applicable Redemption Date shall be repaid, together with any interest or other earnings earned thereon, to the Corporation, and after any such repayment, the holders of the Units entitled to the funds so repaid to the Corporation shall look only to the Corporation for payment without interest or other earnings. (iv) No Units of Series F Preferred Stock may be redeemed except from proceeds from the sale of other capital stock of the Corporation, including but not limited to common stock, preferred stock, depositary shares, interests, participations or other ownership interests (however designated) and any rights (other than debt securities convertible into or exchangeable for equity securities) or options to purchase any of the foregoing. (v) Unless full accumulated dividends on all Units of Series F Preferred Stock and any other class or series of Parity Stock shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods and the then current Dividend Period, no Units or Parity Stock shall be redeemed or purchased or otherwise acquired directly or indirectly; provided, however, that the foregoing shall not prevent the redemption of Units or Parity Stock to preserve the Corporation's REIT status or the purchase or acquisition of Units or Parity Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Units of Series F Preferred Stock or Parity Stock, as the case may be. (vi) If the Redemption Date is after a Record Date and before the related Quarterly Dividend Date, the dividend payable on such Quarterly Dividend Date shall be paid to the holder in whose name the Units of Series F Preferred Stock to be redeemed are registered at the close of business on such Record Date notwithstanding the redemption thereof between such Record Date and the related Quarterly Dividend Date or the Corporation's default in the payment of the dividend due. Except as provided above, the Company will make no payment or allowance for unpaid dividends, whether or not in arrears, on Units to be redeemed. (vii) In case of redemption of less than all of the Units of the Series F Preferred Stock at the time outstanding, the Units of Series F Preferred Stock to be redeemed shall be selected by the Corporation by lot or pro rata from the holders of record of such Units in proportion to the number of Units of Series F Preferred Stock held by such holders (with adjustments to avoid redemption of fractional shares) or by any other equitable method determined by the Corporation in its sole and absolute discretion. (f) Voting Rights. ------------- Except as required by law, and as set forth below, the holders of the Units shall not be entitled to vote at any meeting of the shareholders of the Corporation for election of Directors or for any other purpose or otherwise to participate in any action taken by the Corporation or the shareholders thereof, or to receive notice of any meeting of shareholders and the consent of the holders of the Units shall not be required for the taking of any corporate action. (1) If and whenever dividends payable on the Units or any series or class of Parity Stock shall be in arrears for six consecutive or otherwise Dividend Periods, whether or not declared, the number of directors then constituting the Board of Directors shall be increased by two, and the holders of such Units, together with the holders of shares of every other series of Parity Stock, voting together as a single class regardless of series, shall be entitled to vote for the election of two additional directors of the Corporation at any annual meeting of shareholders or special meeting held in place thereof, or at a special meeting of the holders of the Units and the Parity Stock called as hereinafter provided. Whenever all arrears in dividends on the Units and the Parity Stock then outstanding shall have been paid and dividends thereon for the current Dividend Period shall have been paid or declared and set apart for payment, then the right of the holders of the Units and the Parity Stock to elect such additional two directors shall immediately cease (but subject always to the same provision for the vesting of such voting rights in the case of any similar future arrearages in six consecutive Dividend Periods), and the terms of office of all persons elected as directors by the holders of the Units and the Parity Stock shall immediately terminate and the number of the Board of Directors shall be reduced accordingly. (2) At any time after such voting rights shall have been so vested in the holders of the Units and the Parity Stock, the secretary of the Corporation may, and upon the written request of holders of record of at least ten percent (10%) of the Units then outstanding (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of the Units and of the Parity Stock for the election of the two directors to be elected by them as herein provided, such call to be made by notice similar to that provided in the Bylaws of the Corporation for a special meeting of the shareholders or as required by law. If any such special meeting required to be called as provided above shall not be called by the secretary within 20 days after receipt of any such request, then any holder of Units may call such meeting, upon the notice provided above, and for that purpose shall have access to the stock records of the Corporation. The directors elected at any such special meeting shall hold office until the next annual meeting of the shareholders or special meeting held in lieu thereof if such office shall not have previously terminated as provided above. If any vacancy shall occur among the directors elected by the holders of the Units and the Parity Stock, a successor shall be elected by the Board of Directors, upon the nomination of the then-remaining director elected by the holders of the Units and the Parity Stock or the successor of such remaining director, to serve until the next annual meeting of the shareholders or special meeting held in place thereof if such office shall not have previously terminated as provided above. (3) So long as any Units of Series F Preferred Stock remain outstanding, the Corporation will not, without the affirmative vote or consent of the holders of at least two-thirds of the Units and the Parity Stock outstanding at the time, acting as a single class regardless of series, given in person or by proxy, either in writing or at a meeting, (i) authorize or create, or increase the authorized or issued amount of, any class or series of Equity Securities ranking prior to the Series F Preferred Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding up or reclassify any authorized shares of the Corporation into such shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such shares; or (ii) amend, alter or repeal the provisions of the Articles of Incorporation, including this Amendment, so as to materially and adversely affect any right, preference, privilege or voting power of the Series F Preferred Stock, the Parity Stock or the holders thereof; provided, however, that the amendment of the provisions of the Articles of Incorporation so as to authorize or create or to increase the authorized amount of shares of any class of any Fully Junior Stock or Junior Stock that are not senior in any respect to the Series F Preferred Stock, or any shares of any class ranking on a parity with the Series F Preferred Stock or the Parity Stock, shall not be deemed to adversely affect the rights, preferences, privileges or voting power of the Series F Preferred Stock; and provided further, however, that if any such amendment, alteration or repeal would materially and adversely affect any right, preference, privilege or voting power of the Series F Preferred Stock or another series of Parity Stock that is not enjoyed by some or all of the other series otherwise entitled to vote in accordance herewith, the affirmative vote of at least two thirds of the votes entitled to be cast by the holders of all series similarly affected, similarly given, shall be required in lieu of the affirmative vote of at least two thirds of the votes entitled to be cast by the holders of the Units of the Series F Preferred Stock and the Parity Stock otherwise entitled to vote in accordance herewith; or (iii) effect or validate a share exchange that affects the Series F Preferred Stock, a consolidation with or merger of the Corporation into another entity, or a consolidation with or merger of another entity into the Corporation, unless in each such case each Unit of Series F Preferred Stock (x) shall remain outstanding without a material and adverse change to its terms and rights or (y) shall be converted into or exchanged for preferred stock of the surviving entity having preferences, voting powers, restrictions, limitations as to dividends, qualifications and terms or conditions of redemption thereof identical to that of a Unit of Series F Preferred Stock (except for changes that do not materially and adversely affect the holders of the Units). The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding Units of Series F Preferred Stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect such redemption. (4) On each matter submitted to a vote of the holders of Units of the Series F Preferred Stock in accordance with this Section 6.10, or as otherwise required by law, each Unit of Series F Preferred Stock shall be entitled to one vote. With respect to each Unit of Series F Preferred Stock, the holder thereof may designate a proxy, with each such proxy having the right to vote on behalf of the holder. (g) Retirement. ---------- Except as otherwise provided in the Articles of Incorporation, all Units of Series F Preferred Stock which shall have been issued and reacquired in any manner by the Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock, without designation as to class or series. (h) Conversion. ---------- The Units of Series F Preferred Stock are not convertible into or exchangeable for any other property or securities of the Corporation. (i) Record Holders. -------------- The Corporation and the Corporation's transfer agent may deem and treat the record holder of any Units of Series F Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor its transfer agent shall be affected by any notice to the contrary. 6.11. Preferred Stock. --------------- Pursuant to the authority granted under Section 6.01 of the Corporation's Amended and Restated Articles of Incorporation (the "Articles of Incorporation"), the Board of Directors of the Corporation hereby establishes a series of preferred shares designated the 8.625% Series H Cumulative Redeemable Preferred Shares (the "Series H Preferred Stock"), the holders of which shall receive units representing one one-thousandth (1/1,000) of a share (the "Units") of such Series H Preferred Stock, on the following terms:. (a) Number ------ The maximum number of authorized shares of the Series H Preferred Stock shall be 2,600. (b) Relative Seniority. ------------------ In respect of rights to receive dividends and to participate in distributions of payments in the event of any liquidation, dissolution or winding up of the Corporation, the Series H Preferred Stock shall rank (a) senior to any class or series of Equity Stock of the Corporation ranking, as to the payment of dividends or as to the distribution of assets upon liquidation, dissolution or winding up, junior to the Series H Preferred Stock (collectively, "Junior Stock"), (b) senior to any class or series of Equity Stock of the Corporation ranking, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution or winding up, junior to the Series H Preferred Stock (collectively, "Fully Junior Stock"), and (c) on a parity with any class or series of Equity Stock of the Corporation ranking, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share thereof are different from those of the Series H Preferred Stock, if the holders of such class or series of Equity Stock and the Series H Preferred Stock shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution or winding up in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or priority one over the other (collectively, "Parity Stock"). (c) Dividends. --------- (1) The holders of the then outstanding Units shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, cumulative dividends at the rate of $2.15625 per share per year, payable in equal amounts of $0.5390625 per share quarterly in cash on the last day of each January, April, July and October or, if not a Business Day (as hereinafter defined), the next succeeding Business Day. Dividends shall begin to accrue and shall be fully cumulative from the first date on which the pertinent Units of the Series H Preferred Stock are issued and sold and shall first be payable on January 31, 1999 (each such payment date being hereafter called a "Quarterly Dividend Date" and each period ending on a Quarterly Dividend Date being hereinafter called a "Dividend Period"). Dividends shall be payable to holders of record as they appear in the share records of the Corporation at the close of business on the applicable record date (the "Record Date"), which shall be the 15th day of the calendar month in which the applicable Quarterly Dividend Date falls on or such other date designated by the Board of Directors of the Corporation for the payment of dividends that is not more than 50 nor less than 10 days prior to such Quarterly Dividend Date. The amount of any dividend payable for any Dividend Period shorter than a full Dividend Period shall be prorated and computed on the basis of the actual number of days in such period. Dividends paid on the Units in an amount less than the total amount of such dividends at the time accrued and payable on such Units shall be allocated pro rata on a per share basis among all such shares at the time outstanding. "Business Day" shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close. (2) The amount of any dividends accrued on any Units at any Quarterly Dividend Date shall be the amount of any unpaid dividends accumulated thereon, to and including such Quarterly Dividend Date, whether or not earned or declared, and the amount of dividends accrued on any Units of Series H Preferred Stock at any date other than a Quarterly Dividend Date shall be equal to the sum of the amount of any unpaid dividends accumulated thereon, to and including the last preceding Quarterly Dividend Date, whether or not earned or declared, plus an amount calculated on the basis of the annual dividend rate of $2.15625 per Units for the period after such last preceding Quarterly Dividend Date to and including the date as of which the calculation is made based on the actual number of days in such period. (3) Except as provided in this Section 6.11, the Series H Preferred Stock will not be entitled to any dividends in excess of full cumulative dividends as described above and shall not be entitled to participate in the earnings or assets of the Corporation, and no interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Units which may be in arrears. (4) Any dividend payment made on the Units shall first be credited against the earliest accrued but unpaid dividend due with respect to such Units which remains payable. (5) If, for any taxable year, the Corporation elects to designate as "capital gain dividends" (as defined in Section 857 of the Code), any portion (the "Capital Gains Amount") of the dividends paid or made available for the year to holders of all classes of shares (the "Total Dividends"), then the portion of the Capital Gains Amount that shall be allocated to the holders of the Units shall equal (i) the Capital Gains Amount multiplied by (ii) a fraction that is equal to (a) the total dividends paid or made available to the holders of the Units for the year over (b) the Total Dividends. (6) No dividends on the Units shall be authorized by the Board of Directors or be paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such authorization, payment or setting apart for payment or provide that such authorization, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such authorization or payment shall be restricted or prohibited by law. Notwithstanding the foregoing, dividends on the Units will accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized. (7) So long as any Units of Series H Preferred Stock remain outstanding, no dividends, except as described in the immediately following sentence, shall be declared or paid or set apart for payment on any class or series of Parity Stock for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Units for all Dividend Periods terminating on or prior to the dividend payment date for such class or series of Parity Stock. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all dividends declared upon the Units and all dividends declared upon any other class or series of Parity Stock shall be declared ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Units and accumulated and unpaid on such Parity Stock. (8) So long as any Units of Series H Preferred Stock remain outstanding, no dividends (other than dividends or distributions paid solely in shares of, or options, warrants or rights to subscribe for or purchase shares of, Fully Junior Stock) shall be declared or paid or set apart for payment or other distribution declared or made upon Junior Stock or Fully Junior Stock, nor shall any Junior Stock or Fully Junior Stock be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of any employee incentive or benefit plan of the Corporation or any subsidiary) for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation, directly or indirectly (except by conversion into or exchange for shares of Fully Junior Stock), unless in each case (i) the full cumulative dividends on all outstanding Units of Series H Preferred Stock and any other Parity Stock of the Corporation shall have been or contemporaneously are declared and paid or declared and set apart for payment for all past Dividend Periods with respect to the Units and all past dividend periods with respect to such Parity Stock and (ii) sufficient funds shall have been or contemporaneously are declared and paid or declared and set apart for the payment of the dividend for the current Dividend Period with respect to the Units and the current dividend period with respect to such Parity Stock. (d) Liquidation Rights. ------------------ (1) Upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of the Units then outstanding shall be entitled to receive and to be paid out of the assets of the Corporation available for distribution to its shareholders, before any payment or distribution shall be made on any Junior Stock, the amount of $25.00 per Unit, plus accrued and unpaid dividends thereon. (2) After the payment to the holders of the Units of the full preferential amounts provided for in this Section 6.11, any other series or class of Junior Stock or Fully Junior Stock shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid, and the holders of the Units, as such, shall have no right or claim to any of the remaining assets of the Corporation. (3) If, upon any voluntary or involuntary dissolution, liquidation, or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of the Units shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other shares of any class or series of Parity Stock, then such assets, or the proceeds thereof, shall be distributed among the holders of the Units and any such other Parity Stock ratably in accordance with the respective amounts that would be payable on such Units and any such other Parity Stock if all amounts payable thereon were paid in full. (4) Neither a consolidation nor a merger of any other entity into or with the Corporation, a statutory share exchange by the Corporation or a sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation, shall be deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, for the purposes of this Section 6.11. (e) Redemption. ---------- (1) Optional Redemption. ------------------- On and after November 12, 2003, the Corporation may, at its option, redeem at any time all or, from time to time, any part of the Series H Preferred Stock at a price per Unit (the "Redemption Price"), payable in cash, of $25.00, together with all accrued and unpaid dividends to and including the date fixed for redemption (the "Redemption Date"), without interest, to the full extent the Company has funds legally available therefor. The Series H Preferred Stock shall have no stated maturity and will not be subject to any sinking fund or mandatory redemption provisions. (2) Procedures of Redemption. ------------------------ (i) Notice of redemption will be given by publication in a newspaper of general circulation in the City of New York, such publication to be made once a week for two successive weeks commencing not less than 30 nor more than 90 days prior to the Redemption Date. Notice of any redemption will also be mailed by the registrar, postage prepaid, not less than 30 nor more than 90 days prior to the Redemption Date, addressed to each holder of record of the Units to be redeemed at the address set forth in the share transfer records of the registrar. Any notice mailed in the manner provided herein shall be conclusively presumed to have been given on the date mailed whether or not the holder received the notice. No failure to give such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Units except as to the holder to whom the Corporation has failed to give notice or except as to the holder to whom notice was defective. In addition to any information required by law or by the applicable rules of any exchange upon which Units may be listed or admitted to trading, such notice shall state: (a) the Redemption Date; (b) the Redemption Price; (c) the number of Units of Series H Preferred Stock to be redeemed; (d) the place or places where certificates for such Units are to be surrendered for payment of the Redemption Price; and (e) that dividends on the Units to be redeemed will cease to accumulate on the Redemption Date. If fewer than all of the Units of Series H Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of Units of Series H Preferred Stock to be redeemed from such holder. (ii) If notice has been mailed in accordance with subparagraph (e)(2)(i) above and provided that on or before the Redemption Date specified in such notice all funds necessary for such redemption shall have been irrevocably set aside by the Corporation, separate and apart from its other funds in trust for the pro rata benefit of the holders of the Units so called for redemption, so as to be, and to continue to be available therefor, then, from and after the Redemption Date, dividends on the Units so called for redemption shall cease to accumulate, and said Units shall no longer be deemed to be outstanding and shall not have the status of Units of Series H Preferred Stock and all rights of the holders thereof as shareholders of the Corporation (except the right to receive the Redemption Price) shall cease. Upon surrender, in accordance with such notice, of the certificates for any Units of Series H Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and the notice shall so state), such Units of Series H Preferred Stock shall be redeemed by the Corporation at the Redemption Price. In case fewer than all the Units of Series H Preferred Stock represented by any such certificate are redeemed, a new certificate or certificates shall be issued presenting the unredeemed Units of Series H Preferred Stock without cost to the holder thereof. (iii) Any funds deposited with a bank or trust company for the purpose of redeeming Units of Series H Preferred Stock shall be irrevocably deposited except that: (A) the Corporation shall be entitled to receive from such bank or trust company the interest or other earnings, if any, earned on any money so deposited in trust, and the holders of any Units redeemed shall have no claim to such interest or other earnings; and (B) any balance of monies so deposited by the Corporation and unclaimed by the holders of the Units entitled thereto at the expiration of two years from the applicable Redemption Date shall be repaid, together with any interest or other earnings earned thereon, to the Corporation, and after any such repayment, the holders of the Units entitled to the funds so repaid to the Corporation shall look only to the Corporation for payment without interest or other earnings. (iv) No Units of Series H Preferred Stock may be redeemed except from proceeds from the sale of other capital stock of the Corporation, including but not limited to common stock, preferred stock, depositary shares, interests, participations or other ownership interests (however designated) and any rights (other than debt securities convertible into or exchangeable for equity securities) or options to purchase any of the foregoing. (v) Unless full accumulated dividends on all Units of Series H Preferred Stock and any other class or series of Parity Stock shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods and the then current Dividend Period, no Units or Parity Stock shall be redeemed or purchased or otherwise acquired directly or indirectly; provided, however, that the foregoing shall not prevent the redemption of Units or Parity Stock to preserve the Corporation's REIT status or the purchase or acquisition of Units or Parity Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Units of Series H Preferred Stock or Parity Stock, as the case may be. (vi) If the Redemption Date is after a Record Date and before the related Quarterly Dividend Date, the dividend payable on such Quarterly Dividend Date shall be paid to the holder in whose name the Units of Series H Preferred Stock to be redeemed are registered at the close of business on such Record Date notwithstanding the redemption thereof between such Record Date and the related Quarterly Dividend Date or the Corporation's default in the payment of the dividend due. Except as provided above, the Company will make no payment or allowance for unpaid dividends, whether or not in arrears, on Units to be redeemed. (vii) In case of redemption of less than all of the Units of the Series H Preferred Stock at the time outstanding, the Units of Series H Preferred Stock to be redeemed shall be selected by the Corporation by lot or pro rata from the holders of record of such Units in proportion to the number of Units of Series H Preferred Stock held by such holders (with adjustments to avoid redemption of fractional shares) or by any other equitable method determined by the Corporation in its sole and absolute discretion. (f) Voting Rights. ------------- Except as required by law, and as set forth below, the holders of the Units shall not be entitled to vote at any meeting of the shareholders of the Corporation for election of Directors or for any other purpose or otherwise to participate in any action taken by the Corporation or the shareholders thereof, or to receive notice of any meeting of shareholders and the consent of the holders of the Units shall not be required for the taking of any corporate action. (1) If and whenever dividends payable on the Units or any series or class of Parity Stock shall be in arrears for six consecutive or otherwise Dividend Periods, whether or not declared, the number of directors then constituting the Board of Directors shall be increased by two, and the holders of such Units, together with the holders of shares of every other series of Parity Stock, voting together as a single class regardless of series, shall be entitled to vote for the election of two additional directors of the Corporation at any annual meeting of shareholders or special meeting held in place thereof, or at a special meeting of the holders of the Units and the Parity Stock called as hereinafter provided. Whenever all arrears in dividends on the Units and the Parity Stock then outstanding shall have been paid and dividends thereon for the current Dividend Period shall have been paid or declared and set apart for payment, then the right of the holders of the Units and the Parity Stock to elect such additional two directors shall immediately cease (but subject always to the same provision for the vesting of such voting rights in the case of any similar future arrearages in six consecutive Dividend Periods), and the terms of office of all persons elected as directors by the holders of the Units and the Parity Stock shall immediately terminate and the number of the Board of Directors shall be reduced accordingly. (2) At any time after such voting rights shall have been so vested in the holders of the Units and the Parity Stock, the secretary of the Corporation may, and upon the written request of holders of record of at least ten percent (10%) of the Units then outstanding (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of the Units and of the Parity Stock for the election of the two directors to be elected by them as herein provided, such call to be made by notice similar to that provided in the Bylaws of the Corporation for a special meeting of the shareholders or as required by law. If any such special meeting required to be called as provided above shall not be called by the secretary within 20 days after receipt of any such request, then any holder of Units may call such meeting, upon the notice provided above, and for that purpose shall have access to the stock records of the Corporation. The directors elected at any such special meeting shall hold office until the next annual meeting of the shareholders or special meeting held in lieu thereof if such office shall not have previously terminated as provided above. If any vacancy shall occur among the directors elected by the holders of the Units and the Parity Stock, a successor shall be elected by the Board of Directors, upon the nomination of the then-remaining director elected by the holders of the Units and the Parity Stock or the successor of such remaining director, to serve until the next annual meeting of the shareholders or special meeting held in place thereof if such office shall not have previously terminated as provided above. (3) So long as any Units of Series H Preferred Stock remain outstanding, the Corporation will not, without the affirmative vote or consent of the holders of at least two-thirds of the Units and the Parity Stock outstanding at the time, acting as a single class regardless of series, given in person or by proxy, either in writing or at a meeting, (A) authorize or create, or increase the authorized or issued amount of, any class or series of Equity Securities ranking prior to the Series H Preferred Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding up or reclassify any authorized shares of the Corporation into such shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such shares; or (B) amend, alter or repeal the provisions of the Articles of Incorporation, including this Amendment, so as to materially and adversely affect any right, preference, privilege or voting power of the Series H Preferred Stock, the Parity Stock or the holders thereof; provided, however, that the amendment of the provisions of the Articles of Incorporation so as to authorize or create or to increase the authorized amount of shares of any class of any Fully Junior Stock or Junior Stock that are not senior in any respect to the Series H Preferred Stock, or any shares of any class ranking on a parity with the Series H Preferred Stock or the Parity Stock, shall not be deemed to adversely affect the rights, preferences, privileges or voting power of the Series H Preferred Stock; and provided further, however, that if any such amendment, alteration or repeal would materially and adversely affect any right, preference, privilege or voting power of the Series H Preferred Stock or another series of Parity Stock that is not enjoyed by some or all of the other series otherwise entitled to vote in accordance herewith, the affirmative vote of at least two thirds of the votes entitled to be cast by the holders of all series similarly affected, similarly given, shall be required in lieu of the affirmative vote of at least two thirds of the votes entitled to be cast by the holders of the Units of the Series H Preferred Stock and the Parity Stock otherwise entitled to vote in accordance herewith; or (C) effect or validate a share exchange that affects the Series H Preferred Stock, a consolidation with or merger of the Corporation into another entity, or a consolidation with or merger of another entity into the Corporation, unless in each such case each Unit of Series H Preferred Stock (x) shall remain outstanding without a material and adverse change to its terms and rights or (y) shall be converted into or exchanged for preferred stock of the surviving entity having preferences, voting powers, restrictions, limitations as to dividends, qualifications and terms or conditions of redemption thereof identical to that of a Unit of Series H Preferred Stock (except for changes that do not materially and adversely affect the holders of the Units). The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding Units of Series H Preferred Stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect such redemption. (4) On each matter submitted to a vote of the holders of Units of the Series H Preferred Stock in accordance with this Section 6.11, or as otherwise required by law, each Unit of Series H Preferred Stock shall be entitled to one vote. With respect to each Unit of Series H Preferred Stock, the holder thereof may designate a proxy, with each such proxy having the right to vote on behalf of the holder. (g) Retirement. ---------- Except as otherwise provided in the Articles of Incorporation, all Units of Series H Preferred Stock which shall have been issued and reacquired in any manner by the Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock, without designation as to class or series. (h) Conversion. ---------- The Units of Series H Preferred Stock are not convertible into or exchangeable for any other property or securities of the Corporation. (i) Record Holders. -------------- The Corporation and the Corporation's transfer agent may deem and treat the record holder of any Units of Series H Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor its transfer agent shall be affected by any notice to the contrary. EX-2 3 EXHIBIT 2 DEPOSIT AGREEMENT AMONG DUKE REALTY INVESTMENTS, INC. AND AMERICAN STOCK TRANSFER & TRUST CO. Dated as of , 1999 ------- TABLE OF CONTENTS PAGE ---- ARTICLE I DEFINITIONS Section 1.1. "Articles of Incorporation" 1 Section 1.2. "Company" 1 Section 1.3. "Corporate Office" 1 Section 1.4. "Deposit Agreement" 1 Section 1.5. "Depositary" 1 Section 1.6. "Depositary's Agent" 2 Section 1.7. "Designating Amendment" 2 Section 1.8. "Preference Share" 2 Section 1.9. "Preference Receipt" 2 Section 1.10. "record date" 2 Section 1.11. "record holder" or "holder" 2 Section 1.12. "Registrar" 2 Section 1.13. "Securities Act" 2 Section 1.14. "Series F Preferred Share" 2 Section 1.15. "Series H Preferred Share" 2 Section 1.16. "Transfer Agent" 2 ARTICLE II FORM OF PREFERENCE RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF PREFERENCE RECEIPTS Section 2.1. Form and Transferability of Preference Receipts 3 Section 2.2. Deposit of Preferred Shares; Execution and Delivery of Preference Receipts in Respect Thereof 4 Section 2.3. Optional Redemption of Preferred Shares for Cash 5 Section 2.4. Registration of Transfers of Preference Receipts 6 Section 2.5. Combinations and Split-ups of Preference Receipts 6 Section 2.6. Surrender of Preference Receipts and Withdrawal of Preferred Shares 6 Section 2.7. Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Preference Receipts 7 Section 2.8. Lost Preference Receipts, etc. 8 Section 2.9. Cancellation and Destruction of Surrendered Preference Receipts 8 ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF PREFERENCE RECEIPTS AND THE COMPANY Section 3.1. Filing Proofs, Certificates and Other Information 8 Section 3.2. Payment of Fees and Expenses 8 Section 3.3. Representations and Warranties as to Preferred Shares 9 Section 3.4. Representation and Warranty as to Preference Receipts and Preference Shares 9 ARTICLE IV THE PREFERRED SHARES; NOTICES Section 4.1. Cash Distributions 9 Section 4.2. Distributions Other Than Cash 9 Section 4.3. Subscription Rights, Preferences or Privileges 10 Section 4.4. Notice of Dividends; Fixing of Record Date for Holders of Preference Receipts 11 Section 4.5. Voting Rights 11 Section 4.6. Changes Affecting Preferred Shares and Reclassifications, Recapitalization, etc. 11 Section 4.7. Inspection of Reports 12 Section 4.8. Lists of Preference Receipt Holders 12 Section 4.9. Tax and Regulatory Compliance 13 Section 4.10. Withholding 13 ARTICLE V THE DEPOSITARY AND THE COMPANY Section 5.1. Maintenance of Offices, Agencies and Transfer Books by the Depositary and the Registrar 13 Section 5.2. Prevention or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company 14 Section 5.3. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company 14 Section 5.4. Resignation and Removal of the Depositary; Appointment of Successor Depositary 15 Section 5.5. Notices, Reports and Documents 16 Section 5.6. Indemnification by the Company 16 Section 5.7. Fees, Charges and Expenses 16 ARTICLE VI AMENDMENT AND TERMINATION Section 6.1. Amendment 17 Section 6.2. Termination 17 ARTICLE VII MISCELLANEOUS Section 7.1. Counterparts 18 Section 7.2. Exclusive Benefit of Parties 18 Section 7.3. Invalidity of Provisions 18 Section 7.4. Notices 18 Section 7.5. Depositary's Agents 19 Section 7.6. Holders of Preference Receipts Are Parties 19 Section 7.7. Governing Law 19 Section 7.8. Inspection of Deposit Agreement and Designating Amendment 19 Section 7.9. Headings 19 DEPOSIT AGREEMENT DEPOSIT AGREEMENT, dated as of / / / /, 1999, among DUKE REALTY INVESTMENTS, INC., an Indiana corporation (the "Company"), and American Stock Transfer & Trust Co., a New York banking corporation, as Depositary, and all holders from time to time of Preference Receipts (as hereinafter defined) issued hereunder. W I T N E S S E T H: ------------------- WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of the Company's Series F Preferred Shares and Series H Preferred Shares (as hereinafter defined) with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of the Preference Receipts evidencing Series F Preference Shares and Series H Preference Shares representing a fractional interest in the Series F Preferred Shares and Series H Preferred Shares, respectively, deposited; and WHEREAS, the Preference Receipts evidencing Series F Preference Shares are to be substantially in the form of Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; and Preference Receipts evidencing Series H Preference Shares are to be substantially in the form of Exhibit B annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises contained herein, it is agreed by and among the parties hereto as follows: ARTICLE I DEFINITIONS The following definitions shall apply to the respective terms (in the singular and plural forms of such terms) used in this Deposit Agreement and the Preference Receipts: SECTION 1.1 "Articles of Incorporation" shall mean the Amended and Restated Articles of Incorporation, as amended from time to time, of the Company. SECTION 1.2 "Company" shall mean Duke Realty Investments, Inc., an Indiana corporation, and its successors. SECTION 1.3 "Corporate Office" shall mean the corporate office of the Depositary at which at any particular time its business in respect of matters governed by this Deposit Agreement shall be administered, which at the date of this Deposit Agreement is located at 40 Wall Street, New York, NY 10005. SECTION 1.4 "Deposit Agreement" shall mean this agreement, as the same may be amended, modified or supplemented from time to time. SECTION 1.5 "Depositary" shall mean American Stock Transfer & Trust Co., a company having its principal office in the United States and having a combined capital and surplus of at least $10,000,000, and any successor as depositary hereunder. SECTION 1.6 "Depositary's Agent" shall mean an agent appointed by the Depositary as provided, and for the purposes specified, in Section 7.5. SECTION 1.7 "Designating Amendment" shall mean the amendment to the Articles of Incorporation filed with the Secretary of State of the State of Indiana establishing the Preferred Shares as a series of preferred shares of the Company. SECTION 1.8 "Preference Shares" shall mean the Series F Preference Shares and the Series H Preference Shares. SECTION 1.9 "Preference Receipt" shall mean a Depositary Preference Receipt issued hereunder to evidence one or more of the Series F or Series H Preference Shares, whether in definitive or temporary form, substantially in the forms set forth as Exhibit A and Exhibit B hereto. SECTION 1.10 "Preferred Shares" shall mean the Series F Preferred Shares and the Series H Preferred Shares. SECTION 1.11 "record date" shall mean the date fixed pursuant to Section 4.4. SECTION 1.12 "record holder" or "holder" as applied to a Preference Receipt shall mean the person in whose name a Preference Receipt is registered on the books maintained by the Depositary for such purpose. SECTION 1.13 "Registrar" shall mean American Stock Transfer & Trust Co. or any bank or trust company appointed to register ownership and transfers of Preference Receipts or the deposited Preferred Shares, as the case may be, as herein provided. SECTION 1.14 "Securities Act" shall mean the Securities Act of 1933, as amended. SECTION 1.15 "Series F Preference Share" shall mean a fractional interest of 1/1,000 of a Series F Preferred Share deposited with the Depositary hereunder and the same proportionate interest in any and all other property received by the Depositary in respect of such Series F Preferred Share and held under this Deposit Agreement, all as evidenced by the Preference Receipts issued hereunder. Subject to the terms of this Deposit Agreement, each owner of a Series F Preference Share is entitled, proportionately, to all the rights, preferences and privileges of the Series F Preferred Share represented by such Series F Preference Share, including the dividend, voting, redemption, conversion and liquidation rights contained in the Designating Amendment. SECTION 1.16 "Series H Preference Share" shall mean a fractional interest of 1/1,000 of a Series H Preferred Share deposited with the Depositary hereunder and the same proportionate interest in any and all other property received by the Depositary in respect of such Series H Preferred Share and held under this Deposit Agreement, all as evidenced by the Preference Receipts issued hereunder. Subject to the terms of this Deposit Agreement, each owner of a Series H Preference Share is entitled, proportionately, to all the rights, preferences and privileges of the Series H Preferred Share represented by such Series H Preference Share, including the dividend, voting, redemption, conversion and liquidation rights contained in the Designating Amendment. SECTION 1.17 "Series F Preferred Share" shall mean the Company's 8.0% Series F Cumulative Redeemable Preferred Shares, par value $0.01 per share, heretofore validly issued, fully paid and nonassessable. SECTION 1.18 "Series H Preferred Share" shall mean the Company's 8.625% Series H Cumulative Redeemable Preferred Shares, par value $0.01 per share, heretofore validly issued, fully paid and nonassessable. SECTION 1.19 "Transfer Agent" shall mean American Stock Transfer & Trust Co. or any bank or trust company appointed to transfer the Preference Receipts or the deposited Preferred Shares, as the case may be, as herein provided. ARTICLE II FORM OF PREFERENCE RECEIPTS, DEPOSIT OF PREFERRED SHARES, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF PREFERENCE RECEIPTS SECTION 2.1 Form and Transferability of Preference Receipts. ----------------------------------------------- Definitive Preference Receipts shall be engraved or printed or lithographed with steel-engraved borders and underlying tint and shall be substantially in the form set forth in Exhibits A and B annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Preference Receipts, the Depositary, upon the written order of the Company, delivered in compliance with Section 2.2, shall execute and deliver temporary Preference Receipts which may be printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Preference Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Preference Receipts may determine, as evidenced by their execution of such Preference Receipts. If temporary Preference Receipts are issued, the Company and the Depositary will cause definitive Preference Receipts to be prepared without unreasonable delay. After the preparation of definitive Preference Receipts, the temporary Preference Receipts shall be exchangeable for definitive Preference Receipts upon surrender of the temporary Preference Receipts at the Corporate Office or such other offices, if any, as the Depositary may designate, without charge to the holder. Upon surrender for cancellation of any one or more temporary Preference Receipts, the Depositary shall execute and deliver in exchange therefor definitive Preference Receipts representing the same number of Preference Shares as represented by the surrendered temporary Preference Receipt or Preference Receipts. Such exchange shall be made at the Company's expense and without any charge therefor. Until so exchanged, the temporary Preference Receipts shall in all respects be entitled to the same benefits under this Deposit Agreement, and with respect to the Preferred Shares deposited, as definitive Preference Receipts. Preference Receipts shall be executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary; PROVIDED that if a Registrar (other than the Depositary) shall have been appointed, then such Preference Receipts shall also be countersigned by manual signature of a duly authorized signatory of the Registrar. No Preference Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed as provided in the preceding sentence. The Depositary shall record on its books each Preference Receipt executed as provided above and delivered as hereinafter provided. Except as the Depositary may otherwise determine, Preference Receipts shall be in denominations of any number of whole Preference Shares. All Preference Receipts shall be dated the date of their issuance. Preference Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or regulation or with the rules and regulations of any securities exchange upon which the Preferred Shares, the Preference Shares or the Preference Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Preference Receipts are subject. Title to any Preference Receipt (and to the Preference Shares evidenced by such Preference Receipt), that is properly endorsed or accompanied by a properly executed instrument of transfer or endorsement shall be transferable by delivery with the same effect as in the case of a negotiable instrument; PROVIDED, HOWEVER, that until a Preference Receipt shall be transferred on the books of the Depositary as provided in Section 2.4, the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions, the exercise of any conversion rights or to any notice provided for in this Deposit Agreement and for all other purposes. SECTION 2.2 Deposit of Preferred Shares; Execution and Delivery of Preference Receipts in Respect Thereof. - ------------------------------------------------------------------------------- Concurrently with the execution of this Deposit Agreement, the Company is delivering to the Depositary a certificate or certificates, registered in the name of the Depositary and evidencing 6,000 Series F Preferred Shares and 2,600 Series H Preferred Shares properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with (i) all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement and (ii) a written order of the Company directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Preference Receipt or Preference Receipts for the Preference Shares representing such deposited Preferred Shares. The Depositary acknowledges receipt of the deposited Preferred Shares and related documentation and agrees to hold such deposited Preferred Shares in an account to be established by the Depositary at the Corporate Office or at such other office as the Depositary shall determine. The Company hereby appoints the Depositary as the Registrar and Transfer Agent for Preferred Shares deposited hereunder and the Depositary hereby accepts such appointment and, as such, will reflect changes in the number of shares (including any fractional shares) of deposited Preferred Shares held by it by notation, book-entry or other appropriate method. If required by the Depositary, Preferred Shares presented for deposit by the Company at any time, whether or not the register of shareholders of the Company is closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, that will provide for the prompt transfer to the Depositary or its nominee of any dividend or right to subscribe for additional Preferred Shares or to receive other property that any person in whose name the Preferred Shares is or has been registered may thereafter receive upon or in respect of such deposited Preferred Shares, or in lieu thereof such agreement of indemnity or other agreement as shall be satisfactory to the Depositary. Upon receipt by the Depositary of a certificate or certificates for Preferred Shares deposited hereunder, together with the other documents specified above, and upon registering such Preferred Shares in the name of the Depositary, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver to, or upon the order of, the person or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section 2.2, a Preference Receipt or Preference Receipts for the number of whole Preference Shares representing the Preferred Shares so deposited and registered in such name or names as may be requested by such person or persons. The Depositary shall execute and deliver such Preference Receipt or Preference Receipts at the Corporate Office, except that, at the request, risk and expense of any person requesting such delivery, such delivery may be made at such other place as may be designated by such person. Other than in the case of splits, combinations or other reclassifications affecting the Preferred Shares, or in the case of dividends or other distributions of Preferred Shares, if any, there shall be deposited hereunder not more than the number of shares constituting the Preferred Shares as set forth in the Designating Amendment, as such may be amended. The Company shall deliver to the Depositary from time to time such quantities of Preference Receipts as the Depositary may request to enable the Depositary to perform its obligations under this Deposit Agreement. SECTION 2.3. Optional Redemption of Preferred Shares for Cash. ------------------------------------------------ Whenever the Company shall elect to redeem deposited Preferred Shares for cash in accordance with the provisions of the Designating Amendment, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 60 days' prior written notice of the date of such proposed redemption and of the number of such Preferred Shares held by the Depositary to be redeemed and the applicable redemption price, as set forth in the Designating Amendment, including the amount, if any, of accrued and unpaid dividends to the date of such redemption. The Depositary shall mail, first-class postage prepaid, notice of the redemption of Preferred Shares and the proposed simultaneous redemption of the Preference Shares representing the Preferred Shares to be redeemed, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Shares and Preference Shares (the "cash redemption date"), to the holders of record on the record date fixed for such redemption pursuant to Section 4.4 hereof of the Preference Receipts evidencing the Preference Shares to be so redeemed, at the addresses of such holders as the same appear on the records of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any such notice shall affect the sufficiency of the proceedings for redemption as to other holders. The Company shall provide the Depositary with such notice, and each such notice shall state: the cash redemption date; the cash redemption price; the number of deposited Preferred Shares and Preference Shares to be redeemed; if fewer than all the Preference Shares held by any holder are to be redeemed, the number of such Preference Shares held by such holder to be so redeemed; the place or places where Preference Receipts evidencing Preference Shares to be redeemed are to be surrendered for payment of the cash redemption price; and that from and after the cash redemption date dividends in respect of the Preferred Shares represented by the Preference Shares to be redeemed will cease to accrue. If fewer than all the outstanding Preference Shares are to be redeemed, the Preference Shares to be redeemed shall be selected pro rata (as nearly as may be practicable without creating fractional Preference Shares) or by any other equitable method determined by the Company. The Company shall also cause notice of redemption to be published in a newspaper of general circulation in The City of New York at least once a week for two successive weeks commencing not less than 30 nor more than 60 days prior to the cash redemption date. In the event that notice of redemption has been made as described in the immediately preceding paragraph and the Company shall then have paid in full to the Depositary the cash redemption price (determined pursuant to the Designating Amendment) of the Preferred Shares deposited with the Depositary to be redeemed (including any accrued and unpaid dividends to the date of redemption), the Depositary shall redeem the number of Preference Shares representing such Preferred Shares so called for redemption by the Company and from and after the cash redemption date (unless the Company shall have failed to redeem the Preferred Shares to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph), all dividends in respect of the Preferred Shares called for redemption shall cease to accrue, the Preference Shares called for redemption shall be deemed no longer to be outstanding and all rights of the holders of Preference Receipts evidencing such Preference Shares (except the right to receive the cash redemption price and any money or other property to which holders of such Preference Receipts were entitled upon such redemption) shall, to the extent of such Preference Shares, cease and terminate. Upon surrender in accordance with said notice of the Preference Receipts evidencing such Preference Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Preference Shares shall be redeemed at a cash redemption price of $25.00 per Preference Share plus any other money and other property payable in respect of such Preferred Shares. The foregoing shall be further subject to the terms and conditions of the Designating Amendment. If fewer than all of the Preference Shares evidenced by a Preference Receipt are called for redemption, the Depositary will deliver to the holder of such Preference Receipt upon its surrender to the Depositary, together with payment of the cash redemption price for and all other amounts payable in respect of the Preference Shares called for redemption, a new Preference Receipt evidencing the Preference Shares evidenced by such prior Preference Receipt and not called for redemption. SECTION 2.4 Registration of Transfers of Preference Receipts. ------------------------------------------------ The Company hereby appoints the Depositary as the Registrar and Transfer Agent for the Preference Receipts and the Depositary hereby accepts such appointment and, as such, shall register on its books from time to time transfers of Preference Receipts upon any surrender thereof by the holder in person or by a duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer or endorsement, together with evidence of the payment of any transfer taxes as may be required by law. Upon such surrender, the Depositary shall execute a new Preference Receipt or Preference Receipts and deliver the same to or upon the order of the person entitled thereto evidencing the same aggregate number of Preference Shares evidenced by the Preference Receipt or Preference Receipts surrendered. SECTION 2.5 Combinations and Split-ups of Preference Receipts. ------------------------------------------------- Upon surrender of a Preference Receipt or Preference Receipts at the Corporate Office or such other office as the Depositary may designate for the purpose of effecting a split-up or combination of Preference Receipts, subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Preference Receipt or Preference Receipts in the authorized denominations requested evidencing the same aggregate number of Preference Shares evidenced by the Preference Receipt or Preference Receipts surrendered. SECTION 2.6 Surrender of Preference Receipts and Withdrawal of Preferred Shares. - --------------------------------------------------------------------------- Any holder of a Preference Receipt or Preference Receipts may withdraw any or all of the deposited Preferred Shares represented by the Preference Shares evidenced by such Preference Receipt or Preference Receipts and all money and other property, if any, represented by such Preference Shares by surrendering such Preference Receipt or Preference Receipts at the Corporate Office or at such office as the Depositary may designate for such withdrawals, Provided that a holder of a Preference Receipt or Preference Receipts may not withdraw such Preferred Shares (or money and other property, if any, represented thereby) which has previously been called for redemption. After such surrender, without unreasonable delay, the Depositary shall deliver to such holder, or to the person or persons designated by such holder as hereinafter provided, the number of whole or fractional shares of such Preferred Shares and all such money and other property, if any, represented by the Preference Shares evidenced by the Preference Receipt or Preference Receipts so surrendered for withdrawal, but holders of such whole or fractional Preferred Shares will not thereafter be entitled to deposit such Preferred Shares hereunder or to receive Preference Shares therefor. If the Preference Receipt or Preference Receipts delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Preference Shares in excess of the number of Preference Shares representing the number of whole or fractional shares of deposited Preferred Shares to be withdrawn, the Depositary shall at the same time, in addition to such number of whole or fractional Preferred Shares and such money and other property, if any, to be withdrawn, deliver to such holder, or (subject to Section 2.4) upon his order, a new Preference Receipt or Preference Receipts evidencing such excess number of Preference Shares. Delivery of such Preferred Shares and such money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate, which, if required by the Depositary, shall be properly endorsed or accompanied by proper instruments of transfer. If the deposited Preferred Shares and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Preference Receipt or Preference Receipts being surrendered for withdrawal of Preferred Shares, such holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Preference Receipt or Preference Receipts surrendered by such holder for withdrawal of such Preferred Shares be properly endorsed in blank or accompanied by a properly executed instrument of transfer or endorsement in blank. The Depositary shall deliver the deposited Preferred Shares and the money and other property, if any, represented by the Preference Shares evidenced by Preference Receipts surrendered for withdrawal at the Corporate Office, except that, at the request, risk and expense of the holder surrendering such Preference Receipt or Preference Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder. SECTION 2.7 Limitations on Execution and Delivery, Transfer, Split- up, Combination, Surrender and Exchange of Preference Receipts. - --------------------------------------------------------------------------- As a condition precedent to the execution and delivery, transfer, split-up, combination, surrender or exchange of any Preference Receipt, the Depositary, any of the Depositary's Agents or the Company may require any or all of the following: (i) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any tax or other governmental charge with respect thereto (including any such tax or charge with respect to the Preferred Shares being deposited or withdrawn); (ii) the production of proof satisfactory to it as to the identity and genuineness of any signature (or the authority of any signature); and (iii) compliance with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement as may be required by any securities exchange upon which the deposited Preferred Shares, the Preference Shares or the Preference Receipts may be included for quotation or listed. The deposit of Preferred Shares may be refused, the delivery of Preference Receipts against Preferred Shares may be suspended, the transfer of Preference Receipts may be refused, and the transfer, split-up, combination, surrender, exchange or redemption of outstanding Preference Receipts may be suspended (i) during any period when the register of shareholders of the Company is closed or (ii) if any such action is deemed reasonably necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under Article X of the Articles of Incorporation or under any provision of this Deposit Agreement. SECTION 2.8 Lost Preference Receipts, etc. ------------------------------ In case any Preference Receipt shall be mutilated or destroyed or lost or stolen, the Depositary, in its discretion, may execute and deliver a Preference Receipt of like form and tenor in exchange and substitution for such mutilated Preference Receipt or in lieu of and in substitution for such destroyed, lost or stolen Preference Receipt, provided that the holder thereof provides the Depositary with (i) evidence reasonably satisfactory to the Depositary of such destruction, loss or theft of such Preference Receipt, of the authenticity thereof and of his ownership thereof and (ii) reasonable indemnification satisfactory to the Depositary and the Company. SECTION 2.9 Cancellation and Destruction of Surrendered Preference Receipts. - --------------------------------------------------------------------------- All Preference Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy such Preference Receipts so cancelled. ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF PREFERENCE RECEIPTS AND THE COMPANY SECTION 3.1 Filing Proofs, Certificates and Other Information. ------------------------------------------------- Any person presenting Preferred Shares for deposit or any holder of a Preference Receipt may be required from time to time to file such proof of residence or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold or delay the delivery of any Preference Receipt, the transfer, redemption or exchange of any Preference Receipt, the withdrawal of the deposited Preferred Shares represented by the Preference Shares evidenced by any Preference Receipt, the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof, until such proof or other information is filed, such certificates are executed or such representations and warranties are made. SECTION 3.2 Payment of Fees and Expenses. ---------------------------- Holders of Preference Receipts shall be obligated to make payments to the Depositary of certain fees and expenses, as provided in Section 5.7, or provide evidence reasonably satisfactory to the Depositary that such fees and expenses have been paid. Until such payment is made, transfer of any Preference Receipt or any withdrawal of the Preferred Shares or money or other property, if any, represented by the Preference Shares evidenced by such Preference Receipt may be refused, any dividend or other distribution may be withheld, and any part or all of the Preferred Shares or other property represented by the Preference Shares evidenced by such Preference Receipt may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder a reasonable number of days prior to such sale). Any dividend or other distribution so withheld and the proceeds of any such sale may be applied to any payment of such fees or expenses, the holder of such Preference Receipt remaining liable for any deficiency. SECTION 3.3 Representations and Warranties as to Preferred Shares. ----------------------------------------------------- In the case of the initial deposit of the Preferred Shares hereunder, the Company and, in the case of subsequent deposits thereof, each person so depositing Preferred Shares under this Deposit Agreement shall be deemed thereby to represent and warrant that such Preferred Shares and each certificate therefor are valid and that the person making such deposit is duly authorized to do so. The Company hereby further represents and warrants that such Preferred Shares, when issued, will be validly issued, fully paid and nonassessable. Such representations and warranties shall survive the deposit of the Preferred Shares and the issuance of Preference Receipts. SECTION 3.4 Representation and Warranty as to Preference Receipts and Preference Shares. - --------------------------------------------------------------------------- The Company hereby represents and warrants that the Preference Receipts, when issued, will evidence legal and valid interests in the Preference Shares and each Preference Share will represent a legal and valid 1/1,000 fractional interest in a deposited Preferred Share. Such representation and warranty shall survive the deposit of the Preferred Shares and the issuance of Preference Receipts evidencing the Preference Shares. ARTICLE IV THE PREFERRED SHARES; NOTICES SECTION 4.1 Cash Distributions. ------------------ Whenever the Depositary shall receive any cash dividend or other cash distribution on the deposited Preferred Shares, including any cash received upon redemption of any Preferred Shares pursuant to Section 2.3, the Depositary shall, subject to Section 3.2, distribute to record holders of Preference Receipts on the record date fixed pursuant to Section 4.4 such amounts of such sum as are, as nearly as practicable, in proportion to the respective numbers of Preference Shares evidenced by the Preference Receipts held by such holders; PROVIDED, HOWEVER, that in case the Company or the Depositary shall be required to and shall withhold from any cash dividend or other cash distribution in respect of the Preferred Shares represented by the Preference Receipts held by any holder an amount on account of taxes, the amount made available for distribution or distributed in respect of Preference Shares represented by such Preference Receipts subject to such withholding shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any holder of Preference Receipts a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to record holders of Preference Receipts then outstanding. SECTION 4.2 Distributions Other Than Cash. ----------------------------- Whenever the Depositary shall receive any distribution other than cash on the deposited Preferred Shares, the Depositary shall, subject to Section 3.2, distribute to record holders of Preference Receipts on the record date fixed pursuant to Section 4.4 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Preference Shares evidenced by the Preference Receipts held by such holders, in any manner that the Depositary and the Company may deem equitable and practicable for accomplishing such distribution. If, in the opinion of the Depositary after consultation with the Company, such distribution cannot be made proportionately among such record holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes), the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received or any part thereof, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.2, be distributed or made available for distribution, as the case may be, by the Depositary to record holders of Preference Receipts as provided by Section 4.1 in the case of a distribution received in cash. The Company shall not make any distribution of such securities or property to the holders of Preference Receipts unless the Company shall have provided to the Depositary an opinion of counsel stating that such securities or property have been registered under the Securities Act or do not need to be registered. SECTION 4.3 Subscription Rights, Preferences or Privileges. ---------------------------------------------- If the Company shall at any time offer or cause to be offered to the persons in whose names deposited Preferred Shares are registered on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences or privileges shall in each such instance be made available by the Depositary to the record holders of Preference Receipts in such manner as the Company shall instruct (including by the issue to such record holders of warrants representing such rights, preferences or privileges); provided, however, that (a) if at the time of issue or offer of any such rights, preferences or privileges the Company determines upon advice of its legal counsel that it is not lawful or feasible to make such rights, preferences or privileges available to the holders of Preference Receipts (by the issue of warrants or otherwise) or (b) if and to the extent instructed by holders of Preference Receipts who do not desire to exercise such rights, preferences or privileges, the Depositary shall then, if so instructed by the Company, and if applicable laws or the terms of such rights, preferences or privileges so permit, sell such rights, preferences or privileges of such holders at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Section 3.1 and Section 3.2, be distributed by the Depositary to the record holders of Preference Receipts entitled thereto as provided by Section 4.1 in the case of a distribution received in cash. The Company shall not make any distribution of such rights, preferences or privileges, unless the Company shall have provided to the Depositary an opinion of counsel stating that such rights, preferences or privileges have been registered under the Securities Act or do not need to be registered. If registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for holders of Preference Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company agrees that it will promptly file a registration statement pursuant to the Securities Act with respect to such rights, preferences or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders of Preference Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such a registration statement shall have become effective or unless the offering and sale of such securities to such holders are exempt from registration under the provisions of the Securities Act and the Company shall have provided to the Depositary an opinion of counsel to such effect. If any other action under the law of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Preference Receipts, the Company agrees to use its best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. SECTION 4.4 Notice of Dividends; Fixing of Record Date for Holders of Preference Receipts. - --------------------------------------------------------------------------- Whenever any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made, or any rights, preferences or privileges shall at any time be offered, with respect to the deposited Preferred Shares, or whenever the Depositary shall receive notice of (i) any meeting at which holders of such Preferred Shares are entitled to vote or of which holders of such Preferred Shares are entitled to notice or (ii) any election on the part of the Company to redeem any such Preferred Shares, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Preferred Shares) for the determination of the holders of Preference Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or whose Preference Shares are to be so redeemed. SECTION 4.5 Voting Rights. -------------- Upon receipt of notice of any meeting at which the holders of deposited Preferred Shares are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Preference Receipts a notice, which shall be provided by the Company and which shall contain (i) such information as is contained in such notice of meeting, (ii) a statement that the holders of Preference Receipts at the close of business on a specified record date fixed pursuant to Section 4.4 will be entitled, subject to any applicable provision of law, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Preferred Shares represented by their respective Preference Shares and (iii) a brief statement as to the manner in which such instructions may be given. Upon the written request of a holder of a Preference Receipt on such record date, the Depositary shall vote or cause to be voted the amount of Preferred Shares represented by the Preference Shares evidenced by such Preference Receipt in accordance with the instructions set forth in such request. To the extent such instructions request the voting of a fractional interest of a share of deposited Preferred Shares, the Depositary shall aggregate such interest with all other fractional interests resulting from requests with the same voting instructions and shall vote the number of whole votes resulting from such aggregation in accordance with the instructions received in such requests. Each Series F Preferred Share and each Series H Preferred Share is entitled to one vote and, accordingly, each Series F Preference Share and each Series H Preference Share is entitled to 1/1,000 of one vote. The Company hereby agrees to take all reasonable action that may be deemed necessary by the Depositary in order to enable the Depositary to vote such Preferred Shares or cause such Preferred Shares to be voted. In the absence of specific instructions from the holder of a Preference Receipt, the Depositary will abstain from voting to the extent of the Preferred Shares represented by the Preference Shares evidenced by such Preference Receipt. The Depositary shall not be required to exercise discretion in voting any Preferred Shares represented by the Preference Shares evidenced by such Preference Receipt. SECTION 4.6 Changes Affecting Preferred Shares and Reclassifications, Recapitalization, etc. - --------------------------------------------------------------------------- Upon any change in par or stated value, split-up, combination or any other reclassification of Preferred Shares, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party or sale of all or substantially all of the Company's assets, the Depositary shall, upon the instructions of the Company: (i) make such adjustments in (a) the fraction of an interest represented by one Preference Share in one Preferred Share and (b) the ratio of the redemption price per Preference Share to the redemption price of a Preferred Share, in each case as may be required by or as is consistent with the provisions of the Designating Amendment to fully reflect the effects of such change in liquidation value, split-up, combination or other reclassification of Shares, or of such recapitalization, reorganization, merger, consolidation or sale and (ii) treat any shares or other securities or property (including cash) that shall be received by the Depositary in exchange for or upon conversion of or in respect of the Preferred Shares as new deposited property under this Deposit Agreement, and Preference Receipts then outstanding shall thenceforth represent the proportionate interests of holders thereof or the new deposited property so received in exchange for or upon conversion or in respect of such Preferred Shares. In any such case the Depositary may, in its discretion, with approval of the Company, execute and deliver additional Preference Receipts, or may call for the surrender of all outstanding Preference Receipts to be exchanged for new Preference Receipts specifically describing such new deposited property. Anything to the contrary herein notwithstanding, holders of Preference Receipts shall have the right from and after the effective date of any such change in par or stated value, split-up, combination or other reclassification of the Preferred Shares or any such recapitalization, reorganization, merger, amalgamation or consolidation or sale of substantially all the assets of the Company to surrender such Preference Receipts to the Depositary with instructions to convert, exchange or surrender the Preferred Shares represented thereby only into or for, as the case may be, the kind and amount of shares and other securities and property and cash into which the deposited Preferred Shares evidenced by such Preference Receipts might have been converted or for which such Preferred Shares might have been exchanged or surrendered immediately prior to the effective date of such transaction. The Company shall cause effective provision to be made in the charter of the resulting or surviving corporation (if other than the Company) for protection of such rights as may be applicable upon exchange of the deposited Preferred Shares for securities or property or cash of the surviving corporation in connection with the transactions set forth above. The Company shall cause any such surviving corporation (if other than the Company) expressly to assume the obligations of the Company hereunder. SECTION 4.7 Inspection of Reports. ---------------------- The Depositary shall make available for inspection by holders of Preference Receipts at the Corporate Office and at such other places as it may from time to time deem advisable during normal business hours any reports and communications received from the Company that are both received by the Depositary as the holder of deposited Preferred Shares and made generally available to the holders of the Preferred Shares. In addition, the Depositary shall transmit certain notices and reports to the holders of Preference Receipts as provided in Section 5.5. SECTION 4.8 Lists of Preference Receipt Holders. ----------------------------------- Promptly upon request from time to time by the Company, the Depositary shall furnish to the Company a list, as of a recent date specified by the Company, of the names, addresses and holdings of Preference Shares of all persons in whose names Preference Receipts are registered on the books of the Depositary. SECTION 4.9 Tax and Regulatory Compliance. ------------------------------ The Depositary shall be responsible for (i) preparation and mailing of form 1099s for all open and closed accounts, (ii) foreign tax withholding, (iii) withholding 31% (or any withholding as may be required at the then applicable rate) of dividends from eligible holders of Preference Receipts if directed to do so by the Company or required to do so by applicable law, (iv) mailing W-9 forms to new holders of Preference Receipts without a certified taxpayer identification number, (v) processing certified W-9 forms, (vi) preparation and filing of state information returns and (vii) escheatment services. SECTION 4.10 Withholding. ----------- Notwithstanding any other provision of this Deposit Agreement, in the event that the Depositary determines that any distribution in property is subject to any tax which the Depositary is obligated by law to withhold, the Depositary may dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes, by public or private sale, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes to the holders of Preference Receipts entitled thereto in proportion to the number of Preference Shares held by them respectively. ARTICLE V THE DEPOSITARY AND THE COMPANY SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by the Depositary and the Registrar. - --------------------------------------------------------------------------- The Depositary shall maintain at the Corporate Office facilities for the execution and delivery, transfer, surrender and exchange, split-up, combination and redemption of Preference Receipts and deposit and withdrawal of Preferred Shares and at the offices of the Depositary's Agents, if any, facilities for the delivery, transfer, surrender and exchange, split-up, combination and redemption of Preference Receipts and deposit and withdrawal of Preferred Shares, all in accordance with the provisions of this Deposit Agreement. The Depositary shall keep books at the Corporate Office for the registration and transfer of Preference Receipts, which books at all reasonable times shall be open for inspection by the record holders of Preference Receipts as provided by applicable law. The Depositary may close such books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder. If the Preference Receipts or the Preference Shares evidenced thereby or the Preferred Shares represented by such Preference Shares shall be listed on the New York Stock Exchange, Inc. or any other stock exchange, the Depositary may, with the approval of the Company, appoint a Registrar (acceptable to the Company) for registration of such Preference Receipts or Preference Shares in accordance with the requirements of such Exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of such Exchange) may be removed and a substitute registrar appointed by the Depositary upon the request or with the approval of the Company. If the Preference Receipts, such Preference Shares or such Preferred Shares are listed on one or more other stock exchanges, the Depositary will, at the request and expense of the Company, arrange such facilities for the delivery, transfer, surrender, redemption and exchange of such Preference Receipts, such Preference Shares or such Preferred Shares as may be required by law or applicable stock exchange regulations. SECTION 5.2 Prevention or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company. - --------------------------------------------------------------------------- Neither the Depositary, any Depositary's Agent, any Registrar nor the Company shall incur any liability to any holder of any Preference Receipt, if by reason of any provision of any present or future law or regulation thereunder of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary's Agent or the Registrar, by reason of any provision, present or future, of the Articles of Incorporation or the Designating Amendment or, in the case of the Company, the Depositary, the Depositary's Agent or the Registrar, by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, the Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing that the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability to any holder of a Preference Receipt by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing that the terms of this Deposit Agreement provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement. SECTION 5.3 Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company. - --------------------------------------------------------------------------- Neither the Depositary, any Depositary's Agent, any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement or any Preference Receipt to holders of Preference Receipts other than from acts or omissions arising out of conduct constituting bad faith, negligence (in the case of any action or inaction with respect to the voting of the deposited Preferred Shares), gross negligence or willful misconduct in the performance of such duties as are specifically set forth in this Deposit Agreement. Neither the Depositary, any Depositary's Agent, any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding with respect to the deposited Preferred Shares, Preference Shares or Preference Receipts that in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary, any Depositary's Agent, any Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, or information provided by any person presenting Preferred Shares for deposit, any holder of a Preference Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. In the event the Depositary shall receive conflicting claims, requests or instructions from any holders of Preference Receipts, on the one hand, and the Company, on the other hand, the Depositary shall be entitled to act on such claims, requests or instructions received from the Company, and shall be entitled to the full indemnification set forth in Section 5.6 hereof in connection with any action so taken. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the deposited Preferred Shares or for the manner or effect of any such vote made, as long as any such action or non- action is in good faith and does not result from negligence or willful misconduct of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Agreement against the Depositary or any Registrar. The Depositary, its parent, affiliate, or subsidiaries, any Depositary's Agent, and any Registrar may own, buy, sell or deal in any class of securities of the Company and its affiliates and in Preference Receipts or Preference Shares or become pecuniarily interested in any transaction in which the Company or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary or the Depositary's Agent hereunder. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates or act in any other capacity for the Company or its affiliates. It is intended that neither the Depositary nor any Depositary's Agent shall be deemed to be an "issuer" of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary and any Depositary's Agent are acting only in a ministerial capacity as Depositary for the deposited Preferred Shares; PROVIDED, HOWEVER, that the Depositary agrees to comply with all information reporting and withholding requirements applicable to it under law or this Deposit Agreement in its capacity as Depositary. The Company agrees that it will register the deposited Preferred Shares and the Preference Shares if required by the applicable securities laws. SECTION 5.4 Resignation and Removal of the Depositary; Appointment of Successor Depositary. - --------------------------------------------------------------------------- The Depositary may at any time resign as Depositary hereunder by notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If a successor depositary shall not have been appointed in 60 days, the resigning Depositary may petition a court of competent jurisdiction to appoint a successor depositary. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all rights, title and interest in the deposited Preferred Shares and any moneys or property held hereunder to such successor and shall deliver to such successor a list of the record holders of all outstanding Preference Receipts. Any successor depositary shall promptly mail notice of its appointment to the record holders of Preference Receipts. Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor depositary may execute the Preference Receipts either in the name of the predecessor depositary or in the name of the successor depositary. SECTION 5.5 Notices, Reports and Documents. ------------------------------- The Company agrees that it will deliver to the Depositary, and the Depositary will, promptly after receipt thereof, transmit to the record holders of Preference Receipts, in each case at the address recorded in the Depositary's books, copies of all notices and reports (including financial statements) required by law, by the rules of any national securities exchange upon which the Preferred Shares, the Preference Shares or the Preference Receipts are included for quotation or listed or by the Articles of Incorporation and the Designating Amendment to be furnished by the Company to holders of the deposited Preferred Shares and, if requested by the holder of any Preference Receipt, a copy of this Deposit Agreement, the form of Preference Receipt, the Designating Amendment and the form of Preferred Shares. Such transmission will be at the Company's expense and the Company will provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the record holders of Preference Receipts at the Company's expense such other documents as may be requested by the Company. SECTION 5.6 Indemnification by the Company. ------------------------------ The Company agrees to indemnify the Depositary, any Depositary's Agent and any Registrar against, and hold each of them harmless from, any liability, costs and expenses (including reasonable attorneys' fees) that may arise out of, or in connection with, its acting as Depositary, Depositary's Agent or Registrar, respectively, under this Deposit Agreement and the Preference Receipts, except for any liability arising out of the willful misconduct, gross negligence, negligence (in the case of any action or inaction with respect to the voting of the deposited Preferred Shares) or bad faith on the part of any such person or persons. The obligations of the Company set forth in this Section 5.6 shall survive any succession of any Depositary, Registrar or Depositary's Agent or termination of this Deposit Agreement. SECTION 5.7 Fees, Charges and Expenses. --------------------------- No charges and expenses of the Depositary or any Depositary's Agent hereunder shall be payable by any person, except as provided in this Section 5.7. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of this Deposit Agreement. The Company shall also pay all fees and expenses of the Depositary in connection with the initial deposit of the Preferred Shares and the initial issuance of the Preference Shares evidenced by the Preference Receipts, any redemption of the Preferred Shares at the option of the Company and all withdrawals of the Preferred Shares by holders of Preference Shares. If a holder of Preference Receipts requests the Depositary to perform duties not required under this Deposit Agreement, the Depositary shall notify the holder of the cost of the performance of such duties prior to the performance thereof. Such holder will be liable for the charges and expenses related to such performance. All other fees and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be promptly paid as previously agreed between the Depositary and the Company. The Depositary shall present its statement for fees and expenses to the Company every month or at such other intervals as the Company and the Depositary may agree. ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.1 Amendment. --------- The form of the Preference Receipts and any provision of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect that they may deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment (other than any change in the fees of any Depositary, Registrar or Transfer Agent) which (i) shall materially and adversely alter the rights of the holders of Preference Receipts or (ii) would be materially and adversely inconsistent with the rights granted to the holders of the Preferred Shares pursuant to the Designating Amendment shall be effective unless such amendment shall have been approved by the holders of at least a majority of the Preference Shares then outstanding. In no event shall any amendment impair the right, subject to the provisions of Section 2.6 and Section 2.7 and Article III, of any holder of any Preference Shares to surrender the Preference Receipt evidencing such Preference Shares with instructions to the Depositary to deliver to the holder the deposited Preferred Shares and all money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law. Every holder of an outstanding Preference Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Preference Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. SECTION 6.2 Termination. ------------ This Deposit Agreement may be terminated by the Company upon not less than 30 days' prior written notice to the Depositary if (i) such termination is necessary to preserve the Company's status as a real estate investment trust under the Internal Revenue Code of 1986, as amended (or any successor provisions) or (ii) the holders of a majority of the Preferred Shares consent to such termination, whereupon the Depositary shall deliver or make available to each holder of a Preference Receipt, upon surrender of the Preference Receipt held by such holder, such number of whole or fractional shares of deposited Preferred Shares that are represented by the Preference Shares evidenced by such Preference Receipt, together with any other property held by the Depositary in respect of such Preference Receipt. In the event that this Deposit Agreement is terminated pursuant to clause (i) of the immediately preceding sentence, the Company hereby agrees to use its best efforts to list the Preferred Shares issued upon surrender of the Preference Receipt evidencing the Preference Shares represented thereby on a national securities exchange. This Deposit Agreement will automatically terminate if (i) all outstanding Preference Shares shall have been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final distribution in respect of the deposited Preferred Shares in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Preference Receipts entitled thereto. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Section 5.6 and Section 5.7. ARTICLE VII MISCELLANEOUS SECTION 7.1 Counterparts. ------------ This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Deposit Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Corporate Office and the respective offices of the Depositary's Agents, if any, by any holder of a Preference Receipt. SECTION 7.2 Exclusive Benefit of Parties. ---------------------------- This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.3 Invalidity of Provisions. ------------------------ In case any one or more of the provisions contained in this Deposit Agreement or in the Preference Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.4 Notices. -------- Any and all notices to be given to the Company hereunder or under the Preference Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or facsimile transmission confirmed by letter, addressed to the Company at: DUKE REALTY INVESTMENTS, INC. 8888 Keystone Crossing Suite 1200 Indianapolis, Indiana 46240 Attention: Dennis D. Oklak Telephone No.: (317) 574-3531 or at any other address of which the Company shall have notified the Depositary in writing. Any notices to be given to the Depositary hereunder or under the Preference Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to the Depositary at the Corporate Office. Any notices given to any record holder of a Preference Receipt hereunder or under the Preference Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by telegram or telex or telecopier confirmed by letter, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary or, if such holder shall have filed with the Depositary in a timely manner a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail, or by telegram or telex or telecopier shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram or telex or telecopier message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or telex or telecopier message received by it from the other or from any holder of a Preference Receipt, notwithstanding that such telegram or telex or telecopier message shall not subsequently be confirmed by letter as aforesaid. SECTION 7.5 Depositary's Agents. ------------------- The Depositary may from time to time appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's Agents. The Depositary will notify the Company of any such action. SECTION 7.6 Holders of Preference Receipts Are Parties. ------------------------------------------ The holders of Preference Receipts from time to time shall be deemed to be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Preference Receipts by acceptance of delivery thereof. SECTION 7.7 Governing Law. ------------- This Deposit Agreement and the Preference Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the law of the State of New York applicable to agreements made and to be performed in said State. SECTION 7.8 Inspection of Deposit Agreement and Designating Amendment. - --------------------------------------------------------------------------- Copies of this Deposit Agreement and the Designating Amendment shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Corporate Office and the respective offices of the Depositary's Agents, if any, by any holder of any Preference Receipt. SECTION 7.9 Headings. -------- The headings of articles and sections in this Deposit Agreement and in the form of the Preference Receipts set forth in Exhibit A and Exhibit B hereto have been inserted for convenience only and are not to be regarded as part of this Deposit Agreement or to have any bearing upon the meaning or interpretation of any provision contained herein or in the Preference Receipts. IN WITNESS WHEREOF, Duke Realty Investments, Inc. and American Stock Transfer & Trust Co. have duly executed this Deposit Agreement as of the day and year first above set forth and all holders of Preference Receipts shall become parties hereto by and upon acceptance by them of delivery of Preference Receipts issued in accordance with the terms hereof. DUKE REALTY INVESTMENTS, INC. By: -------------------------------- Attest: Authorized Officer AMERICAN STOCK TRANSFER & TRUST CO. By: ------------------------------- Attest: Authorized Signatory Exhibit A The Preference Shares evidenced by this Preference Receipt are subject to restrictions on ownership and transfer for the purpose of the Company's maintenance of its status as a Real Estate Investment Trust under the Internal Revenue Code of 1986, as amended. In order to maintain such status, the Company's Designating Amendment imposes limitations on the number of Series F Cumulative Redeemable Preferred Shares that may be owned by any single person or affiliated group. All capitalized terms in this legend have the meanings defined in the Company's Designating Amendment for the Series F Cumulative Redeemable Preferred Shares. Transfers in violation of the restrictions described above shall be void ab initio. The Company will furnish to the holder hereof upon request and without charge a complete written statement of the terms and conditions of the Series F Cumulative Redeemable Preferred Shares. Requests for such statement may be directed to the Secretary of the Company. [FORM OF FACE OF PREFERENCE RECEIPT] DR- CERTIFICATE FOR NOT MORE THAN 6,000,000 PREFERENCE SHARES CUSIP -------- PREFERENCE RECEIPT FOR PREFERENCE SHARES, EACH REPRESENTING 1/1,000 OF A SERIES F CUMULATIVE REDEEMABLE PREFERRED SHARE DUKE-WEEKS REALTY CORPORATION (an Indiana corporation) , as Depositary (the "Depositary"), hereby certifies that ------------ is the registered owner of PREFERENCE SHARES - ---------------- ----------- ("Preference Shares"), each Preference Share representing 1/1,000 of one Series F Cumulative Redeemable Preferred Share, $0.01 par value per share (the "Shares"), of Duke-Weeks Realty Corporation, an Indiana corporation (the "Company"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of , 1999 (the "Deposit Agreement"), among the Company, the - --------------- --- Depositary and the holders from time to time of Preference Receipts for Preference Shares. By accepting this Preference Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Preference Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer or, if a Registrar in respect of the Preference Receipts (other than the Depositary) shall have been appointed, by the manual signature of a duly authorized officer of such Registrar. Dated: [Countersigned: -------------------------------- By: By: ------------------------ ----------------------------- Authorized Signatory [FORM OF REVERSE PREFERENCE RECEIPT] DUKE REALTY INVESTMENTS, INC. WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF PREFERENCE RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO THE SERIES F CUMULATIVE REDEEMABLE PREFERRED SHARES OF DUKE REALTY INVESTMENTS, INC. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS PREFERENCE RECEIPT. The following abbreviations when used in the instructions on the face of this Preference Receipt shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian ---------- --------- (Cust) (Minor) TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors Act JT TEN - as joint tenants with right of survivorship and not as tenants in common --------- (State) Additional abbreviations may also be used though not in the above list. ASSIGNMENT ----------- For value received, hereby sell(s), assign(s) and ------------ transfer(s) unto ------------ PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE -------------------------- -------------------------- PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE -------------------------- Preference Shares represented by the within Preference Receipt, - ----------- and do hereby irrevocably constitute and appoint Attorney to ------------- transfer the said Preference Shares on the books of the within named Depositary with full power of substitution in the premises. Dated: ------------------- NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Preference Receipt in every particular, without alteration or enlargement or any change whatever. Exhibit B The Preference Shares evidenced by this Preference Receipt are subject to restrictions on ownership and transfer for the purpose of the Company's maintenance of its status as a Real Estate Investment Trust under the Internal Revenue Code of 1986, as amended. In order to maintain such status, the Company's Designating Amendment imposes limitations on the number of Series H Cumulative Redeemable Preferred Shares that may be owned by any single person or affiliated group. All capitalized terms in this legend have the meanings defined in the Company's Designating Amendment for the Series H Cumulative Redeemable Preferred Shares. Transfers in violation of the restrictions described above shall be void AB INITIO. The Company will furnish to the holder hereof upon request and without charge a complete written statement of the terms and conditions of the Series H Cumulative Redeemable Preferred Shares. Requests for such statement may be directed to the Secretary of the Company. [FORM OF FACE OF PREFERENCE RECEIPT] DR- CERTIFICATE FOR NOT MORE THAN 2,600,000 PREFERENCE SHARES CUSIP ------------ PREFERENCE RECEIPT FOR PREFERENCE SHARES, EACH REPRESENTING 1/1,000 OF A SERIES H CUMULATIVE REDEEMABLE PREFERRED SHARE DUKE-WEEKS REALTY CORPORATION (an Indiana corporation) , as Depositary (the "Depositary"), hereby certifies that - ----------------- is the registered owner of PREFERENCE SHARES ("Preference - ---------- ------- Shares"), each Preference Share representing 1/1,000 of one Series H Cumulative Redeemable Preferred Share, $0.01 par value per share (the "Shares"), of Duke-Weeks Realty Corporation, an Indiana corporation (the "Company"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of ---------- , 1999 (the "Deposit Agreement"), among the Company, the Depositary and - -- the holders from time to time of Preference Receipts for Preference Shares. By accepting this Preference Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Preference Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer or, if a Registrar in respect of the Preference Receipts (other than the Depositary) shall have been appointed, by the manual signature of a duly authorized officer of such Registrar. Dated: ----------------------- [Countersigned By: By: - ---------------------------] ------------------------------- Authorized Signatory [FORM OF REVERSE PREFERENCE RECEIPT] DUKE REALTY INVESTMENTS, INC. WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF PREFERENCE RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF THE DESIGNATING AMENDMENT WITH RESPECT TO THE SERIES H CUMULATIVE REDEEMABLE PREFERRED SHARES OF DUKE REALTY INVESTMENTS, INC. ANY SUCH REQUEST SHALL BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS PREFERENCE RECEIPT. The following abbreviations when used in the instructions on the face of this Preference Receipt shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian ------------ -------- (Cust) (Minor) TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors Act JT TEN - as joint tenants with right of survivorship and not as tenants in common -------- (State) Additional abbreviations may also be used though not in the above list. ASSIGNMENT For value received, hereby sell(s), assign(s) and ----------- transfer(s) unto ----------- PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ---------------------------------------- ----------------------------------------- PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE ----------------------------------------- Preference Shares represented by the within Preference Receipt, - ----------- and do hereby irrevocably constitute and appoint Attorney to ------------ transfer the said Preference Shares on the books of the within named Depositary with full power of substitution in the premises. Dated: --------------------- NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Preference Receipt in every particular, without alteration or enlargement or any change whatever. -----END PRIVACY-ENHANCED MESSAGE-----