UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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 30, 2015
DUKE REALTY CORPORATION
DUKE REALTY LIMITED PARTNERSHIP
(Exact name of registrant specified in its charter)
Duke Realty Corporation:
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Indiana | | 1-9044 | | 35-1740409 |
(State of | | (Commission | | (IRS Employer |
Formation) | | File Number) | | Identification No.) |
Duke Realty Limited Partnership:
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Indiana | | 0-20625 | | 35-1898425 |
(State of | | (Commission | | (IRS Employer |
Formation) | | File Number) | | Identification No.) |
600 East 96th Street
Suite 100
Indianapolis, IN 46240
(Address of Principal Executive Offices, Zip Code)
Registrant’s telephone number, including area code: (317) 808-6000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Explanatory Note
On August 22, 2014, Duke Realty Corporation, an Indiana corporation (the “Company”), and Duke Realty Limited Partnership, an Indiana limited partnership (the “Operating Partnership”), of which the Company is the sole general partner, entered into an Equity Distribution Agreement (the “Equity Distribution Agreement”) with Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., and UBS Securities LLC, as sales agents and/or principals (the “Agents”). A copy of the Equity Distribution Agreement is filed as Exhibit 1.1 to the combined Current Report on Form 8-K filed by the Company and the Operating Partnership on August 22, 2014. Under the terms of the Equity Distribution Agreement, the Company may sell shares of its common stock, $0.01 par value per share, from time to time, to or through the Agents, up to an aggregate offering price of $175,000,000 (the “Offering”). The shares were initially offered pursuant to the Company’s shelf registration statement on Form S-3 (Registration No. 333-181030), which became effective upon filing with the Securities and Exchange Commission (the “Commission”) on April 30, 2012 (the “2012 Registration Statement”). On April 30, 2015, the Company and the Operating Partnership filed a new registration statement on Form S-3, which became effective upon filing with the Commission (the “Registration Statement”), to replace the expiring 2012 Registration Statement. Also on April 30, 2015, the Company filed a prospectus supplement pursuant to Rule 424(b)(5) to register the securities that remain unsold pursuant to the Offering. This Current Report on Form 8-K (the “Report”) is being filed to provide exhibits to be incorporated by reference into the Registration Statement.
Item 9.01. Financial Statements and Exhibits.
The materials that are being filed as exhibits to this Report are being filed pursuant to Item 601 of the Commission’s Regulation S-K in lieu of filing the otherwise required exhibits to the Registration Statement. This Report is incorporated by reference into the Registration Statement, and, as such, the Company and the Operating Partnership are incorporating by reference the exhibits to this Report to cause them to be incorporated by reference into the Registration Statement as exhibits thereto. By filing this Report, and the exhibits hereto, however, neither the Company nor the Operating Partnership believe that any of the information set forth herein or in the exhibits hereto represent, either individually or in the aggregate, a “fundamental change” (as such term is used in Item 512(a)(1)(ii) of the Commission’s Regulation S-K) in the information set forth in, and incorporated by reference into, the Registration Statement.
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Exhibit Number | Description |
5.1 | Legality Opinion of Alston & Bird LLP. |
8.1 | Tax Opinion of Alston & Bird LLP. |
23.1 | Consent of Alston & Bird LLP (included in Exhibit 5.1). |
23.2 | Consent of Alston & Bird LLP (included in Exhibit 8.1). |
99.1 | Other Expenses of Issuance and Distribution (as required by Item 14 of Part II of Form S-3) (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on August 22, 2014).
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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 CORPORATION
By: /s/ ANN C. DEE
Ann C. Dee
Executive Vice President, General Counsel and
Corporate Secretary
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Corporation, its general partner
By: /s/ ANN C. DEE
Ann C. Dee
Executive Vice President, General Counsel and
Corporate Secretary
Dated: April 30, 2015
Exhibit Index
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Exhibit Number | Description |
5.1 | Legality Opinion of Alston & Bird LLP. |
8.1 | Tax Opinion of Alston & Bird LLP. |
23.1 | Consent of Alston & Bird LLP (included in Exhibit 5.1). |
23.2 | Consent of Alston & Bird LLP (included in Exhibit 8.1). |
99.1 | Other Expenses of Issuance and Distribution (as required by Item 14 of Part II of Form S-3) (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on August 22, 2014).
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Exhibit 5.1
Alston&Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777
www.alston.com
April 30, 2015
Duke Realty Corporation
Duke Realty Limited Partnership
600 East 96th Street, Suite 100
Indianapolis, IN 46240
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| Re: | Duke Realty Corporation – Registration Statement on Form S-3ASR (Registration Statement No. 333-203744), filed with the Securities and Exchange Commission on April 30, 2015 |
Ladies and Gentlemen:
We have acted as counsel to Duke Realty Corporation, an Indiana corporation (the “Company”), and Duke Realty Limited Partnership, an Indiana limited partnership (the “Operating Partnership,” and, together with the Company, the “Duke Entities”), in connection with the filing of the above referenced shelf registration statement (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”).
This opinion letter is being furnished in accordance with the requirements of Item 16 of the Commission’s Form S-3 and Item 601(b)(5) of Regulation S-K under the Act, in connection with the Company’s agreement pursuant to that certain Equity Distribution Agreement, dated as of August 22, 2014 (the “Equity Distribution Agreement”), by and among the Company, the Operating Partnership, Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., and UBS Securities LLC (the “Agents”), to make available for issuance and sale, from time to time in one or more transactions, through the Agents, a number of shares (the “Shares”) of the Company’s common stock, par value $0.01 per share, sufficient to generate up to $175,000,000 in gross proceeds. The Shares are being issued and sold to and/or through the Agents pursuant to the Registration Statement and the Company’s prospectus, dated April 30, 2015 (the “Prospectus”), included in the Registration Statement, and the related prospectus supplement, dated April 30, 2015 (the “Prospectus Supplement”).
Atlanta • Brussels • Charlotte • Dallas • Los Angeles • New York • Research Triangle • Silicon Valley • Ventura County • Washington, D.C.
In the capacity described above, we have considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Duke Entities, including, without limitation, resolutions adopted by the boards of directors or other governing bodies or controlling entities of the Duke Entities and the organizational documents of the Duke Entities (in each case, as amended and/or restated), certificates of officers and representatives (who, in our judgment, are likely to know the facts upon which the opinion or confirmation will be based) of the Duke Entities, certificates of public officials, the Registration Statement and such other documents as we have deemed appropriate as a basis for the opinions hereinafter set forth. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have relied conclusively upon the representations, warranties and statements made in originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements, documents and instruments entered into by the Duke Entities in connection with the issuance of the Shares, including, without limitation, the Equity Distribution Agreement, certificates and or comparable documents of officers of the Duke Entities and public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion or belief as to matters that might have been disclosed by independent verification.
In our examination of the relevant documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Our opinion set forth below is limited to the Indiana Business Corporation Law, applicable provisions of the Constitution of the State of Indiana and reported judicial decisions interpreting such Corporation Law and Constitution that, in our professional judgment, are normally applicable to transactions of the type contemplated by the Equity Distribution Agreement, and federal laws of the United States of America to the extent referred to specifically herein, and we do not express any opinion herein concerning any other laws, statutes, ordinances, rules or regulations.
Based upon the foregoing, and subject, in all respects, to the limitations, qualifications, exceptions and assumptions set forth herein, it is our opinion that:
(1) The issuance of the Shares has been duly authorized and, upon due execution and delivery of the Equity Distribution Agreement by the parties thereto, and upon issuance and delivery of the Shares against full payment therefor as provided in the Equity Distribution Agreement, the Shares will be validly issued, fully paid and nonassessable.
This opinion letter is provided for use solely in connection with the transactions contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement, and may not be used, circulated, quoted or otherwise relied upon for any other purpose without our prior express written consent. The only opinion rendered by us consists of those matters set forth in the paragraph numbered (1) above, and no opinion may be implied or inferred beyond the opinion expressly stated. Our opinion expressed herein is made as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinion expressed herein.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement (or to the filing of this opinion as Exhibit 5.1 to a Current Report on Form 8-K, which will be incorporated by reference into the Registration Statement, as appropriate), and to the reference to this law firm under the caption “Legal Matters” in the Prospectus Supplement constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act or that we are otherwise within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Sincerely,
ALSTON & BIRD LLP
By: /s/ MARK C. KANALY
Mark C. Kanaly, Partner
Alston&Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777
www.alston.com
April 30, 2015
Duke Realty Corporation
Duke Realty Limited Partnership
600 East 96th Street, Suite 100
Indianapolis, IN 46240
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Re: | Duke Realty Corporation – Sale of Common Stock |
Ladies and Gentlemen:
We have represented Duke Realty Corporation, an Indiana corporation (the “Company”), and Duke Realty Limited Partnership, an Indiana limited partnership (the “Operating Partnership”), in connection with the Company’s issuance and sale of the Company’s common stock par value $.01 per share pursuant to the Equity Distribution Agreement dated as of August 22, 2014, between the Company, the Operating Partnership, Jefferies LLC, Morgan Stanley & Co. LLC, SunTrust Robinson Humphrey, Inc., and UBS Securities LLC.
You have requested our opinion as to (i) the qualification of the Company as a real estate investment trust (“REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) the accuracy of the discussion of US federal income tax considerations contained under the caption “Federal Income Tax Considerations” in the Base Prospectus (as defined below).
In connection with this opinion, we have made such legal and factual inquiries as we have deemed necessary or appropriate, including examination of the Company’s Registration Statement on Form S-3 (Registration Statement No. 333-203744), filed with the Securities and Exchange Commission (the “Commission”) on April 30, 2015 (as amended and supplemented from time to time and including the documents incorporated by reference therein, the “Registration Statement”), which includes the Company’s base prospectus dated April 30, 2015 (the “Base Prospectus”), and the Company’s Prospectus Supplement dated April 30, 2015 (the Base Prospectus and the Prospectus Supplement and the documents incorporated by reference therein, collectively, the “Prospectus”). In addition, you have provided us with, and we are relying upon, a certificate containing certain factual representations and covenants of officers of the Company (the “Officer’s Certificate”) relating to,
One Atlantic Center • 1201 West Peachtree Street • Atlanta, GA 30309-3424 • 404-881-7000 • Fax: 404-881-7777
Level 20 Bastion Tower • Place du Champ de Mars • B-1050 Brussels, BE • 32-2-550-3700 • Fax: 32-2-550-3719
Bank of America Plaza • 101 South Tryon Street, Suite 4000 • Charlotte, NC 28280-4000 • 704-444-1000 • Fax: 704-444-1111
Chase Tower • 2200 Ross Avenue, Suite 3601 • Dallas, TX 75201-2708 • 214-922-3400 • Fax: 214-922-3899
333 South Hope Street • 16th Floor • Los Angeles, CA 90071-1410 • 213-576-1000 • Fax: 213-576-1100
90 Park Avenue • New York, NY 10016 • 212-210-9400 • Fax: 212-210-9444
3201 Beechleaf Court, Suite 600 • Raleigh, NC 27604-1062 • 919-862-2200 • Fax: 919-862-2260
Two Palo Alto Square • 3000 El Camino Real, Suite 400 • Palo Alto, CA 94306-2112 • 650-838-2000 • Fax: 650-838-2001
2801 Townsgate Road • Suite 215 • Westlake Village, CA 91361-3020 • 805-497-9474 • Fax: 805-497-8804
The Atlantic Building • 950 F Street, NW • Washington, DC 20004-1404 • 202-756-3300 • Fax: 202-756-3333
among other things, the actual and proposed operations of the Company and the entities in which it holds direct or indirect interests. For purposes of our opinion, however, we have not made an independent investigation of the facts, representations and covenants set forth in the Officer's Certificate, the Prospectus, or in any other document. In particular, we note that the Company may engage in transactions in connection with which we have not provided legal advice, and have not reviewed, and of which we may be unaware. We have assumed and relied on the representations that the information presented in the Officer's Certificate and the Prospectus accurately and completely describe all material facts relevant to our opinion. We have assumed that such statements, representations and covenants are true without regard to any qualification as to knowledge or belief. We are not, however, aware of any facts inconsistent with the representations contained in the Officer’s Certificate or the facts in the above referenced documents. Our opinion is conditioned on the continuing accuracy and completeness of such statements, representations and covenants. Any material change or inaccuracy in the facts referred to, set forth, or assumed herein or in the Officer's Certificate may affect our conclusions set forth herein.
In rendering the opinion set forth herein, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us as copies.
Based upon the foregoing, and subject, in all respects, to the assumptions, qualifications and limitations set forth in this opinion letter, it is our opinion that:
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(i) | Commencing with its taxable year ended December 31, 1999, the Company has been organized, and has operated, in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the present and proposed method of operation (as described in the Prospectus and the Officer’s Certificate) of the Company will permit the Company to continue to so qualify. |
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(ii) | The statements in the Base Prospectus under the caption “Federal Income Tax Considerations,” to the extent that they constitute matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, are correct in all material respects. |
The Company’s qualification as a REIT depends on the Company’s ongoing satisfaction of the various requirements under the Code and described in the Base Prospectus under the caption “Federal Income Tax Considerations” relating to, among other things, the nature of the Company’s gross income, the composition of the Company’s assets, the level of distributions to the Company’s shareholders, and the diversity of the Company’s ownership. Alston & Bird LLP will not review the Company’s compliance with these requirements on a continuing basis. No assurances can be given that the Company will satisfy these requirements.
An opinion of counsel merely represents counsel’s best judgment with respect to the probable outcome on the merits and is not binding on the Internal Revenue Service or the courts. There can be no assurance that positions contrary to our opinion will not be taken by the Internal Revenue Service or that a court considering the issues would not hold contrary to such opinion.
The opinions expressed herein are given as of the date hereof and are based upon the Code, the Treasury regulations promulgated thereunder, current administrative positions of the Internal Revenue Service, and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinions rendered herein. In addition, as noted above, our opinions are based solely on the documents that we have examined and the representations that have been made to us, and cannot be relied upon if any of the facts contained in such documents or in such additional information is, or later becomes, inaccurate or if any of the representations made to us is, or later becomes, inaccurate. Finally, our opinion is limited to the U.S. federal income tax matters specifically covered herein, and we have not opined on any other tax consequences to the Company or any other person, and we express no opinion with respect to other federal laws, the laws of any other jurisdiction, the laws of any state or as to any matters of municipal law or the laws of any other local agencies within any state.
This opinion letter is provided to you for your use solely in connection with the offering of the shares and may not be used, circulated, quoted or otherwise referred to or relied upon by any other person or for any other purpose without our express written consent or used in any other transaction or context. No opinion other than that expressly contained herein may be inferred or implied. This opinion letter is rendered as of the date hereof and we make no undertaking, and expressly disclaim any duty, to supplement or update this opinion letter, if, after the date hereof, facts or circumstances come to our attention or changes in the law occur which could affect such opinion.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration Statement (or to the filing of this opinion as Exhibit 8.1 to a Current Report on Form 8-K, which will be incorporated by reference into the Registration Statement, as appropriate), and to the reference to this law firm under the caption “Legal Matters” in the Prospectus Supplement constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Act.
Very truly yours,
ALSTON & BIRD LLP
By: /s/ JAMES E. CROKER
James E. Croker, Jr., Partner
Duke Realty (NYSE:DRE)
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