As filed with the Securities and Exchange Commission on August 17, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST INDUSTRIAL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland 36-3935116
(State of incorporation) (I.R.S. Employer Identification Number)
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(312) 344-4300
(Address, including zip code, of principal executive offices)
FIRST INDUSTRIAL REALTY TRUST, INC. 2001 STOCK INCENTIVE PLAN
(Full title of the plan)
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Michael W. Brennan
President and Chief Executive Officer
First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(312) 344-4300
(Name, address, and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
=========================== ===================== ======================= ======================= ====================
-------------------------- Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering Amount of
Title of Registered(2) Per Share Price Registration Fee
Securities to be
Registered
--------------------------- --------------------- ----------------------- ----------------------- --------------------
Common Stock, 2,300,000 shares $32.32(3) $74,336,000 $18,584
$.01 par value(1)
=========================== ===================== ======================= ======================= ====================
(1) Includes rights to purchase Junior Participating Preferred Stock of First
Industrial Realty Trust, Inc. (the "Company"). Because no separate
consideration is being paid for the Rights, the registration fee therefor
is included in the fee for the Common Stock.
(2) Plus such additional number of shares as may be issued under the Company's
2001 Stock Incentive Plan in the event of a stock dividend, reverse stock
split, split-up, recapitalization or other similar dilutive event.
(3) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, solely for purposes of determining the registration fee
and is based on the average of the reported high and low sales prices of
the Common Stock on the New York Stock Exchange -- Composite Transactions
System on August 10, 2001.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* As permitted by Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement omits the information
specified in Part I of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the plans
covered by this Registration Statement as required by Rule 428(b). Such
documents are not being filed with the Securities and Exchange Commission
(the "Commission") as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424(b) under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
----------------------------------------
The following documents have been filed by First Industrial Realty Trust,
Inc. (the "Registrant" or the "Company") with the Securities and Exchange
Commission (the "Commission") (File No. 1-13102) and are hereby incorporated by
reference in this Registration Statement:
1) Annual Report on Form 10-K for the year ended December 31, 2000, filed
March 9, 2001;
2) Annual Report on Form 10-K/A No. 1 for the year ended December 31,
2000, filed July 6, 2001;
3) Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2001, filed May 15, 2001;
4) Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2001, filed August 10, 2001;
5) Current Report on Form 8-K filed with the Commission on January 12,
2001;
6) Current Report on Form 8-K/A No. 1 filed with the Commission on March
8, 2001;
7) Current Report on Form 8-K filed with the Commission on March 16,
2001;
8) Current Report on Form 8-K filed with the Commission on April 10,
2001; and
9) The description of the common stock included in the Company's
registration statement on Form 8-A dated June 23, 1994 and the
description of the associated preferred share purchase rights included
in the Form 8-A filed September 24, 1997.
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. Any statement contained
in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein (or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein) modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company's Articles of Incorporation and Bylaws provide certain
limitations on the liability of the Company's Directors and officers of monetary
damages to the Company. The Articles of Incorporation and
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Bylaws obligate the Company to indemnify its Directors and officers, and permit
the Company to indemnify its employees and other agents, against certain
liabilities incurred in connection with their service in such capacities. These
provisions could reduce the legal remedies available to the Company and its
stockholders against these individuals. The provisions of Maryland law provide
for the indemnification of officers and directors of a company under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement:
Exhibit
4.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Form 10-Q of the
Company for the fiscal quarter ended June 30, 1996, File No. 1-13102).
4.2 Articles of Amendment to the Company's Articles of Incorporation,
dated June 20, 1994 (incorporated by reference to Exhibit 3.2 of the
Form 10-Q of the Company for the fiscal quarter ended June 30, 1996,
File No. 1-13102).
4.3 Articles of Amendment to the Company's Articles of Incorporation,
dated May 31, 1996 (incorporated by reference to Exhibit 3.3 of the
Form 10-Q of the Company for the fiscal quarter ended June 30, 1996,
File No. 1-13102)
4.4 Articles Supplementary relating to the Company's Junior Participating
Preferred Stock, $.01 par value (incorporated by reference to Exhibit
4.10 of Form S-3/A of the Company and First Industrial, L.P. dated
September 24, 1997, File No. 333-29879).
5.1 Opinion of Cahill Gordon & Reindel as to the legality of the Common
Stock being registered. 23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933, if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the undersigned registrants pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 6 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on August 17, 2001.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
-----------------------------------------------
Name: Michael J. Havala
Title: Principal Financial and Accounting
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Michael W. Brennan and Michael J. Havala,
and each of them (with full power to each of them to act alone), his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement on Form S-8, to sign any and all
pre- or post-effective amendments to this Registration Statement on Form S-8 and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection with such matters, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Michael W. Brennan President, Chief August 17, 2001
---------------------------------------- Executive Officer and
Michael W. Brennan Director (Principal
Executive
Officer)
/s/ Michael J. Havala Chief Financial Officer August 17, 2001
---------------------------------------- (Principal Financial
Michael J. Havala and Accounting
Officer)
/s/ Michael G.Damone Director of Strategic August 17, 2001
---------------------------------------- Planning and Director
Michael G. Damone
Director
----------------------------------------
John L. Lesher
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---------------------------------------- Director
Kevin W. Lynch
/s/ John E. Rau Director August 17, 2001
----------------------------------------
John E. Rau
/s/ Jay H. Shilder Chairman of the Board of August 17, 2001
---------------------------------------- Directors
Jay H. Shidler
/s/ Robert J. Slater Director August 17, 2001
----------------------------------------
Robert J. Slater
/s/ W. Edwin Tyler Director August 17, 2001
----------------------------------------
W. Edwin Tyler
/s/ J. Steven Wilson Director August 17, 2001
----------------------------------------
J. Steven Wilson
II-5
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Articles of the Company (incorporated by reference to
Exhibit 3.1 of the Form 10-Q of the Company for the fiscal quarter ended
June 30, 1996, File No. 1-13102).
4.2 Articles of Amendment to the Company's Articles of Incorporation, dated
June 20, 1994 (incorporated by reference to Exhibit 3.2 of the Form 10-Q of
the Company's for the fiscal quarter ended June 30, 1996, File No.
1-13102).
4.3 Articles of Amendment to the Company's Articles of Incorporation, dated May
31, 1996 (incorporated by reference to Exhibit 3.3 of the Form 10-Q of the
Company for the fiscal quarter ended June 30, 1996, File No. 1-13102).
4.4 Articles Supplementary relating to the Company's Junior Participating
Preferred Stock, $.01 par value (incorporated by reference to Exhibit 4.10
of Form S-3/A of the Company and First Industrial, L.P. dated September 24,
1997, File No. 333-29879).
5.1 Opinion of Cahill Gordon & Reindel as to the legality of the Common Stock
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5.1).
24.1 Powers of Attorney (included on signature page).
[LETTERHEAD OF CAHILL GORDON & REINDEL]
Exhibit 5.1
August 17, 2001
(212) 701-3000
First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
Ladies and Gentlemen:
This opinion is being rendered in connection with the registration
statement on Form S-8 (the "Registration Statement") filed by First Industrial
Realty Trust, Inc., a Maryland corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") for registration under the Securities
Act of 1933, as amended (the "Securities Act"), of 2,300,000 shares of Common
Stock, par value $.01 per share ("Common Stock").
In connection therewith, we have examined and considered originals or
copies, certified or otherwise identified to our satisfaction, of the Company's
Articles of Incorporation and Bylaws, each as amended and restated, resolutions
of its board of directors and stockholders and such other documents and
corporate records relating to the Company and the issuance and sale of the
Common Stock covered by the Registration Statement as we have deemed appropriate
for purposes of rendering this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
originals of all documents submitted to us as copies. As to matters of fact
which have not been independently established, we have relied upon
representations of officers of the Company.
Based upon the foregoing examination, information supplied and assumptions,
it is our opinion that the 2,300,000 shares of Common Stock, when issued and
paid for in accordance with the terms of the
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Company's 2001 Stock Incentive Plan and the Authorizing Resolutions referred to
in the opinion of McGuire Woods LLP attached hereto, will be duly authorized,
validly issued, fully paid and non-assessable.
We are attorneys admitted to practice in the State of New York. We express
no opinion concerning the laws of any jurisdiction other than the laws of the
United States of America and the State of New York. With respect to matters of
Maryland law, we have relied, without independent investigation, upon the
opinion of McGuireWoods LLP, a copy of which is attached hereto.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement. Our consent to such inclusion does not constitute a
consent under Section 7 of the Securities Act as in consenting to such inclusion
we have not certified any part of the Registration Statement and do not
otherwise come within the categories of persons whose consent is required under
Section 7 or under the rules and regulations of the Commission thereunder.
Very truly yours,
/s/CAHILL GORDON & REINDEL
[LETTERHEAD OF McGUIREWOODS LLP]
August 17, 2001
First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
Ladies and Gentlemen:
This opinion is furnished as special Maryland counsel in connection with
the registration, pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of 2,300,000 shares (the "Stock Incentive Shares") of Common
Stock, par value $.01 per share ("Common Stock"), of First Industrial Realty
Trust, Inc., a Maryland corporation (the "Company"), pursuant to the First
Industrial Realty Trust, Inc. 2001 Stock Incentive Plan (the "Plan").
In connection with rendering this opinion, we have examined originals or
copies certified or otherwise identified to our satisfaction, of:
(a) Articles of Amendment and Restatement of the Company, filed June 13,
1994, as amended to date;
(b) Amended and Restated Bylaws of the Company, as amended to date;
(c) the Plan;
(d) Resolutions of the board of directors and stockholders of the Company,
including those certain resolutions adopted March 9, 2001 by the Board
of Directors of the Company and those certain resolutions adopted by
the stockholders of the Company at the Annual Meeting of Stockholders
held on May 16, 2001 (collectively the "Authorizing Resolutions");
(e) The Registration Statement on Form S-8 relating to the Stock Incentive
Shares (the "Registration Statement");
(f) Certificate of Good Standing for the Company Issued by the State
Department of Assessments and Taxation of Maryland dated August 7,
2001; and
(g) such other certificates, receipts, records and documents relating to
the Company and the issuance and sale of the Stock Incentive Shares as
we considered necessary for the purposes of rendering this opinion.
In conducting our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to originals of all documents submitted to us as copies. As to
matters of fact that have not been independently established, we have relied
upon representations of officers of the Company.
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We are attorneys admitted to practice in the State of Maryland. We express
no opinion concerning the laws of any jurisdiction other than the laws of the
United States of America and the State of Maryland.
Based upon the foregoing, we are of the opinion that the Stock Incentive
Shares, when issued and paid for in accordance with the terms of the Plan and
the Authorizing Resolutions, will be duly authorized, validly issued, fully paid
and nonassessable.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state law
regulating the offer and sale of securities.
This opinion may be relied upon by the law firm of Cahill Gordon & Reindel
with respect to that firm's opinion to be filed as an exhibit to the
Registration Statement. In addition, we hereby consent to the filing of this
opinion as an exhibit to the Registration Statement. Our consent to such filing
does not constitute a consent under Section 7 of the Securities Act and in
consenting to such filing we have not certified any part of the Registration
Statement and do not otherwise come within the categories of persons whose
consent is required under Section 7 or under the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/MCGUIREWOODS LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 9, 2001 relating to the
consolidated financial statements, which appears in the First Industrial Realty
Trust, Inc. Annual Report on Form 10-K/A No. 1 for the year ended December 31,
2000. We also consent to the incorporation by reference of our report dated
February 9, 2001 relating to the financial statement schedule, which also
appears in the First Industrial Realty Trust, Inc. Annual Report on Form 10-K/A
No. 1. We also consent to the incorporation by reference of our report dated
June 28, 2000 relating to the combined historical statement of revenues and
certain expenses of the 2000 Acquisition I Properties for the year ended
December 31, 1999, of our report dated February 2, 2001 relating to the combined
historical statement of revenues and certain expenses of the 2000 Acquisition II
Properties for the year ended December 31, 1999 and of our report dated December
8, 2000 relating to the combined historical statement of revenues and certain
expenses for the 2000 Acquisition III Properties for the year ended December 31,
1999, which each are included in the First Industrial Realty Trust, Inc. Current
Report on Form 8-K dated January 12, 2001, as amended by Form 8-K/A filed on
March 8, 2001.
/s/PRICEWATERHOUSECOOPERS LLP
Chicago, Illinois
August 17, 2001