-----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, G1LL9/kPOzmC0J/Jt8dwkqz8HlOyA+e03SnCjvZKERMB7p71k3E9KWykiPPFZdty R5AprZaZh8EzFX5VXmYqqg== 0000783280-98-000023.txt : 19980428 0000783280-98-000023.hdr.sgml : 19980428 ACCESSION NUMBER: 0000783280-98-000023 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980423 ITEM INFORMATION: FILED AS OF DATE: 19980427 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUKE REALTY INVESTMENTS INC CENTRAL INDEX KEY: 0000783280 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 351740409 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-09044 FILM NUMBER: 98602059 BUSINESS ADDRESS: STREET 1: 8888 KEYSTONE CROSSING STE 1200 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 BUSINESS PHONE: 3175743531 8-K 1 8-K - ------------------------------------------------------------------------ - ------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): April 23, 1998 DUKE REALTY INVESTMENTS, INC. (Exact name of registrant as specified in its charter) Indiana 1-9044 35-1740409 (State or jurisdiction of (Commission (I.R.S. Employer incorporation or organization) File Number) Identification No.) 8888 KEYSTONE CROSSING, SUITE 1200 INDIANAPOLIS, INDIANA 46240 (Address of principal executive offices) (Zip Code) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317) 574-3531 Not applicable (Former name or former address, if changed since last report) - ------------------------------------------------------------------------ - ------------------------------------------------------------------------ ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS Exhibit Number Exhibit - ------- ------- 1 U.S. Terms Agreement dated April 23, 1998, which is being filed pursuant to Regulation S-K Item 601(b)(1) in lieu of filing the otherwise required exhibit to the registration statement on Form S-3 of the Registrant, file no. 333-26845, under the Securities Act of 1933, as amended (the "Registration Statement"), and which, as this Form 8-K filing is incorporated by reference in the Registration Statement, is set forth in full in the Registration Statement. 8 Tax opinion of Bose McKinney & Evans, including consent, which is being filed pursuant to Regulation S-K Item 601(b)(8) in lieu of filing the otherwise required exhibit to the Registration Statement and which, as this Form 8-K filing is incorporated by reference in the Registration Statement, is set forth in full in the Registration Statement. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DUKE REALTY INVESTMENTS, INC. Date: April 27, 1998 By: /s/ Dennis D. Oklak ------------------------- Dennis D. Oklak Executive Vice President and Chief Administrative Officer -2- EX-1 2 TERMS AGREEMENT DUKE REALTY INVESTMENTS, INC. (an Indiana Corporation) 1,525,000 Common Shares TERMS AGREEMENT --------------- April 23, 1998 TO: Duke Realty Investments, Inc. 8888 Keystone Crossing Suite 1150 Indianapolis, IN 46240 Attention: Chairman of the Board of Directors Ladies and Gentlemen: We understand that Duke Realty Investments, Inc., an Indiana corporation (the "Company"), proposes to issue and sell 1,525,000 shares of common stock (the "Common Stock") (such Common Stock being hereinafter referred to as the "U.S. Securities"). Subject to the terms and conditions set forth or incorporated by reference herein, we offer to purchase the U.S. Securities at the purchase price set forth below. We intend to deposit the Common Stock with the trustee of the Equity Investor Fund Cohen & Steers Realty Majors Portfolio (A Unit Investment Trust) (the "Trust"), a registered unit investment trust under the Investment Company Act of 1940, as amended, for which we act as sponsor and depositor, in exchange for units in the Trust. The U.S. Underwritten Securities shall have the following terms: Title of Securities: Common Stock Number of Shares: 1,525,000 Public offering price per share: $24.0000 Purchase price per share: $22.7400 Underwriter: Merrill Lynch, Pierce Fenner & Smith Incorporated Underwriter's Counsel: Rogers & Wells LLP Additional terms: 1. Sections 3(o) and 5(h) of the Underwriting Agreement are inapplicable to this transaction. 2. Section 6(c) is hereby amended to read in its entirety as follows: "(c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of any such action. If it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other indemnifying parties receiving such notice, may assume the defense of such action with counsel chosen by it and reasonably approved by the indemnified parties defendant in such action; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be one or more legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. If an indemnifying party assumes the defense of such action, the indemnifying parties shall not be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. The indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the consent of the indemnifying party. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party." 3. Section 6 is hereby further amended by adding the following subsection (d) after subsection (c): "(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as required by this Section 6, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement." 4. Section 9(a)(ii) is hereby amended to read in its entirety as follows: "(ii) if there has occurred any material adverse change in the financial markets in the United States, or any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic condition, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to (x) commence or continue the offering of the units of the Trust to the public, or (y) enforce contracts for the sale of the units of the Trust," Closing Time, date and location: April 29, 1998, 10:00 a.m., New York City Time, Rogers & Wells LLP, 200 Park Avenue, New York, New York 10166 We propose to deposit the Common Stock with the trustee of the Trust in exchange for units in the Trust as soon after the execution and delivery hereof as in our judgment is advisable. All the provisions contained in the document attached as Annex A hereto entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership - Common Stock, Preferred Stock, Depositary Shares and Debt Securities - U.S. Underwriting Agreement" are incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined. Please accept this offer no later than 6:00 P.M. (New York City time) on April 23, 1998 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us. Very truly yours, MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED BY: /s/ John C. Brady -------------------- Name: Title: CONFIRMED AND ACCEPTED: as of the date first above written DUKE REALTY INVESTMENTS, INC. BY: /s/ Matthew A. Cohoat ---------------------- Name: Matthew A. Cohoat Title: Vice President and Corporate Controller EX-8 3 TAX OPINION OF BOSE MCKINNEY & EVANS BOSE McKINNEY & EVANS 135 North Pennsylvania Street Suite 2700 Indianapolis, Indiana 46204 April 23, 1998 Duke Realty Investments, Inc. 8888 Keystone Crossing, Suite 1200 Indianapolis, Indiana 46240 Gentlemen: We have acted as counsel to Duke Realty Investments, Inc., an Indiana corporation (the "Company"), in connection with the shelf registration by the Company of shares of the Company's common stock ("Common Stock") pursuant to a Registration Statement, file no. 333-26845 (the "Registration Statement"), on Form S-3 under the Securities Act of 1933, as amended. The Company has filed a prospectus supplement (the "Prospectus Supplement") relating to the offering of 1,525,000 shares of Common Stock. In connection therewith, you have requested our opinion regarding certain United States Federal income tax matters discussed in the Prospectus Supplement. All capitalized terms used herein have their respective meanings as set forth in the Prospectus Supplement and accompanying Prospectus unless otherwise stated. In rendering the opinions stated below, we have examined and relied, with your consent, upon the following: (i) The Prospectus Supplement and the accompanying prospectus; and (ii) Such other documents, records and instruments as we have deemed necessary in order to enable us to render the opinion referred to in this letter. Duke Realty Investments, Inc. April 23, 1998 Page 2 In our examination of the foregoing documents, we have assumed, with your consent, that (i) all documents reviewed by us are original documents, or true and accurate copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) each party who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are true and correct, (v) all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms and (vi) the Company, the Operating Partnership and the Services Partnership at all times will be organized and operated in accordance with the terms of such documents. We have further assumed the accuracy of the statements and descriptions of the Company's, the Operating Partnership's and the Services Partnership's intended activities as described in the Registration Statement, the Prospectus Supplement and the reports incorporated in the Registration Statement by reference. Based upon and subject to the foregoing, we are of the opinion that the impact of the Taxpayer Relief Act of 1997 and the pending tax proposals described in the Prospectus Supplement upon the Company and its shareholders and the tax consequences of the ownership of Common Stock will be consistent with the discussion contained in the section entitled "Certain Federal Income Tax Considerations" in the Prospectus Supplement. The opinions set forth in this letter represent our conclusions as to the application of federal income tax laws existing as of the date of this letter to the transactions described herein. We can give no assurance that legislative enactments, administrative changes or court decisions may not be forthcoming that would modify or supersede our opinions. Moreover, there can be no assurance that positions contrary to our opinions will not be taken by the IRS, or that a court considering the issues would not hold contrary to such opinions. Further, the opinions set forth above represent our conclusions based upon the documents, facts and representations referred to above. Any material amendments to such documents, changes in any significant facts or inaccuracy of such representations could affect the opinions referred to herein. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of the facts referred to in this letter. Duke Realty Investments, Inc. April 23, 1998 Page 3 We express no opinion as to any federal income tax issue or other matter except those set forth or confirmed above. We consent to the filing of this opinion with Form 8-K, to the incorporation by reference of this opinion as an exhibit to the registration statement of the Company and Duke Realty Limited Partnership (file no. 333-26845) and any registration statement filed under Rule 462(b) relating to such registration statement and to the reference to our firm under the heading "Legal Matters" in the Prospectus Supplement. Very truly yours, /s/ Bose McKinney & Evans -----END PRIVACY-ENHANCED MESSAGE-----