<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CABOT INDUSTRIAL TRUST
(Exact name of Registrant as specified in its charter)
MARYLAND 04-3397866
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
TWO CENTER PLAZA, SUITE 200, BOSTON, MASSACHUSETTS 02108
(Address of principal executive offices) (Zip Code)
CABOT INDUSTRIAL TRUST LONG-TERM INCENTIVE PLAN
(Full title of the plan)
-----------------
ROBERT E. PATTERSON COPY TO:
PRESIDENT
CABOT INDUSTRIAL TRUST JAMES R. WALTHER, ESQ.
TWO CENTER PLAZA, SUITE 200 MAYER, BROWN & PLATT
BOSTON, MASSACHUSETTS 02108 350 SOUTH GRAND AVENUE
(Name and address of agent for service) LOS ANGELES, CALIFORNIA 90071-1503
(213) 229-9597
(617) 723-0900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
--------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest, par value $.01 per share(3) 4,347,500 $21.25 $92,384,375 $27,253
===========================================================================================================================
</TABLE>
(1) In accordance with Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of Common Shares
issuable pursuant to certain anti-dilution provisions of the plan listed
above.
(2) Estimated pursuant to Rule 457(h) under the Securities Act solely for the
purpose of calculating the registration fee and based upon the average of
the high and low prices of the Common Shares on the New York Stock Exchange
on September 25, 1998.
(3) Includes associated preferred share purchase rights.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated in and made a part of
this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended (excluding Exhibits 99.1, 99.2 and 99.3
thereto), filed pursuant to Section 13(a) of the Securities Exchange Act of
1934 (the "Exchange Act");
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1997;
(c) The description of the Common Shares set forth under the headings
"Description of Shares of Beneficial Interest" and "Certain Provisions of
Maryland Law and of the Company's Declaration of Trust and Bylaws" in the
Registrant's Registration Statement on Form S-11 (File No. 333-61543),
together with any amendment or report filed with the Commission for the
purpose of updating such description; and
(d) The description of the Registrant's preferred share purchase
rights set forth in the Registrant's Registration Statement on Form 8-A
dated June 15, 1998, together with any amendment or report filed with the
Commission for the purpose of updating such description.
All other documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement indicating that all securities offered under this
Registration Statement have been sold, or deregistering all securities then
remaining unsold, are also incorporated herein by reference and shall be a part
hereof from the date of the filing of such documents.
Any statement contained in a document 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 subsequently filed document which 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.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 9, Section 1 of the Registrant's Declaration of Trust provides as
follows with respect to the limitation of liability for Trustees and officers
and indemnification:
"To the maximum extent that Maryland law in effect from time to time
permits limitation of the liability of trustees and officers of a REIT, no
trustee or officer of the Trust shall be liable to the Trust or to any
shareholder for money damages. Neither the amendment nor the repeal of this
Section 1, nor the adoption or amendment of any other provision of this
Declaration of Trust inconsistent with this Section 1, shall apply to or
affect in any respect the applicability of the preceding sentence with
respect to any act or failure to act which occurred prior to such
amendment, repeal or adoption. In the absence of any Maryland statute
limiting the liability of trustees or officers of a Maryland REIT for money
damages in a suit by or on behalf of the Trust or by any shareholder, no
trustee or officer of the Trust shall be liable to the Trust or to any
shareholder for money damages except to the extent that (a) the trustee or
officer actually received an improper benefit or profit in money, property
or services, for the amount of the benefit or profit in money, property or
services actually received or (b) a judgment or other final adjudication
adverse to the trustee or officer is entered in a proceeding based on a
finding in the proceeding that the trustee's or officer's action or failure
to act was the result of active and deliberate dishonesty and was material
to the cause of the action adjudicated in the proceeding."
Article 9, Section 3 of the Registrant's Declaration of Trust provides as
follows with respect to the indemnification of Trustees and officers:
"Notwithstanding any other provisions of this Declaration of Trust, the
Trust, for the purpose of providing indemnification for its Trustees and
officers, shall have the authority, without specific shareholder approval,
to enter into insurance or other arrangements to indemnify all Trustees and
officers of the Trust against any and all liabilities and expenses incurred
by them by reason of their being Trustees or officers of the Trust, whether
or not the Trust would otherwise have the power under this Declaration of
Trust or under Maryland law to indemnify such persons against such
liability. Without limiting the power of the Trust to procure or maintain
any kind of insurance or other arrangement, the Trust may, for the benefit
of persons indemnified by it, (a) create a trust fund, (b) establish any
form of self-insurance, (c) secure its indemnity obligation by grant of any
security interest or other lien on the assets of the Trust, or (d)
establish a letter of credit, guaranty or surety arrangement. Any such
insurance or other arrangement may be procured, maintained or established
within the Trust or with any insurer or other person deemed appropriate by
the Board regardless of whether all or part of the stock or other
securities thereof are owned in whole or in part by the Trust. In the
absence of fraud, the judgment of the Board as to the terms and conditions
of insurance or other arrangement and the identity of the insurer or other
person participating in any arrangement shall be conclusive, and such
insurance or other arrangement shall not be subject to voidability, nor
subject the Trustees approving such insurance or other arrangement to
liability on any ground, regardless of whether Trustees participating and
approving such insurance or other arrangement shall be beneficiaries
thereof."
The Registrant has entered into indemnity agreements with each of its
officers and Trustees which provide for reimbursement of all expenses and
liabilities of such officer or Trustee, arising out of any lawsuit or claim
against such officer or Trustee due to the fact that such person was or is
serving as an officer or Trustee, except for such liabilities and expenses (a)
the payment of which is judicially determined to be unlawful, (b) relating to
claims under Section 16(b) of the Exchange Act or (c) relating to judicially
determined criminal violations.
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
4.1 Cabot Industrial Trust Long-Term Incentive Plan (incorporated by reference
to Exhibit 10.4 to the Registrant's Registration Statement on Form S-11
(File No. 333-38383))
5.1 Opinion of Mayer, Brown & Platt as to the legality of the shares
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Mayer, Brown & Platt (included in Exhibit 5.1)
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in the opinion
filed as Exhibit A to Exhibit 5.1)
24.1 Power of Attorney (included on signature page hereto)
</TABLE>
ITEM 9. UNDERTAKINGS
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 (the "Securities Act");
(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
II-3
<PAGE>
may be reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) 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;
(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 (1)(i) and (1)(ii) 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 Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to Trustees, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act 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 Trustee, officer or controlling person of the Registrant in such
successful defense of any action, suit or proceeding) is asserted by such
Trustee, 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 and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
The Registrant. 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 Boston, State of Massachusetts, on this 30th day
of September, 1998.
CABOT INDUSTRIAL TRUST
By:/s/ Ferdinand Colloredo-Mansfeld
-----------------------------------
Name: Ferdinand Colloredo-Mansfeld
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Cabot Industrial Trust, a
Maryland real estate investment trust, and each of the undersigned Trustees and
officers of Cabot Industrial Trust, hereby constitutes and appoints Ferdinand
Colloredo-Mansfeld, Franz Colloredo-Mansfeld and Neil E. Waisnor its or his true
and lawful attorneys-in-fact and agents, for it or him and in its or his name,
place and stead, in any and all capacities, each with full power to act alone,
to sign any and all amendments to this Registration Statement, and to file each
such amendment to this Registration Statement with all exhibits thereto, and any
and all documents in connection therewith, with the Securities and Exchange
Commission, hereby granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform any and all acts and things
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as it or he might or could do in person, hereby ratifying
and confirming all said attorneys-in-fact and agents, or any of them, 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 indicated below on September 30, 1998.
SIGNATURE TITLE
--------- -----
/s/ Ferdinand Colloredo-Mansfeld
- -------------------------------- Chairman of the Board, Chief Executive
Ferdinand Colloredo-Mansfeld Officer, Trustee (Principal Executive Officer)
/s/ Robert E. Patterson
- -------------------------------- President, Trustee
Robert E. Patterson
II-5
<PAGE>
SIGNATURE TITLE
--------- ------
/s/ Franz Colloredo-Mansfeld Chief Financial Officer (Principal Financial
- ----------------------------- Officer)
Franz Colloredo-Mansfeld
/s/ Neil E. Waisnor Senior Vice President - Finance, Treasurer,
- ----------------------------- Secretary (Principal Accounting Officer)
Neil E. Waisnor
/s/ Noah T. Herndon Trustee
- -----------------------------
Noah T. Herndon
Trustee
- -----------------------------
Christopher C. Milliken
Trustee
- -----------------------------
Maurice Segall
/s/ Ronald L. Skates Trustee
- -----------------------------
Ronald L. Skates
/s/ W. Nicholas Thorndike Trustee
- -----------------------------
W. Nicholas Thorndike
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
- ------ ----------- -------------
<C> <S> <C>
4.1 Cabot Industrial Trust Long-Term Incentive Plan (incorporated by
reference to Exhibit 10.4 to the Registrant's Registration Statement
on Form S-11 (File No. 333-38383))
5.1 Opinion of Mayer, Brown & Platt as to the legality of the shares
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Mayer, Brown & Platt (included in Exhibit 5.1)
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in the
opinion filed as Exhibit A to Exhibit 5.1)
24.1 Power of Attorney (included on signature page hereto)
</TABLE>
<PAGE>
[LETTERHEAD OF MAYER, BROWN & PLATT]
September 30, 1998
The Board of Trustees
Cabot Industrial Trust
Two Center Plaza, Suite 200
Boston, MA 02108-1906
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Cabot Industrial Trust, a Maryland real estate
investment trust (the "Company"), in connection with the offer and sale of up to
4,347,500 common shares of beneficial interest (the "Common Shares") of the
Company, $.01 par value per share, pursuant to the Company's Long-Term Incentive
Plan, as described in the Registration Statement on Form S-8 (together with all
amendments thereto, the "Registration Statement") filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, to which this
opinion is an exhibit. Capitalized terms used herein, unless otherwise defined,
shall have the meanings set forth in the Registration Statement.
As counsel to the Company, we have examined originals or copies certified
to our satisfaction as being true and complete copies of the Company's Amended
and Restated Declaration of Trust, the Company's Amended and Restated Bylaws,
the Company's Long-Term Incentive Plan, resolutions of the Company's Board of
Trustees and such records, certificates and other documents and such questions
of law as we have considered necessary or appropriate for the purpose of this
opinion. As to certain facts relevant to our opinion, we have relied upon
certificates of public officials and officers of the Company. In rendering such
opinion, we have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as copies.
Based upon and subject to the foregoing, we are of the opinion that the
issuance of the Common Shares has been duly authorized by all necessary
corporate action and that the Common Shares, when issued as contemplated in the
Registration Statement and the Long-Term Incentive Plan, will be validly issued,
fully paid and nonassessable.
Insofar as the foregoing opinion involves matters governed by Maryland law,
we have relied, with your approval, upon the opinion of the law firm of Ballard
Spahr Andrews & Ingersoll, LLP, a copy of which is attached as Exhibit A, and
our opinion is subject to the assumptions, limitations and qualifications set
forth therein.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to all references to our firm in the Registration Statement.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE>
EXHIBIT A
---------
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
FILE NUMBER
869050
September 30, 1998
Cabot Industrial Trust
Two Center Plaza, Suite 200
Boston, Massachusetts 02108
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Cabot Industrial Trust, a Maryland
real estate investment trust (the "Company"), in connection with certain matters
of Maryland law arising out of the registration of 4,347,500 common shares (the
"Shares") of beneficial interest, $.01 par value per share, of the Company (the
"Common Shares") covered by the above-referenced Registration Statement, and all
amendments thereto (the "Registration Statement"), under the Securities Act of
1933, as amended (the "1933 Act"). Unless otherwise defined herein, capitalized
terms used shall have the meanings assigned to them in the Registration
Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement and the related form of prospectus included
therein in the form in which it was transmitted to the Securities and Exchange
Commission (the "Commission") under the 1933 Act;
2. The Amended and Restated Declaration of Trust of the Company, certified
as of a recent date by the State Department of Assessments and Taxation of
Maryland (the "SDAT");
3. The Bylaws of the Company, certified as of the date hereof by its
Secretary;
<PAGE>
4. Resolutions adopted by the Board of Trustees of the Company, or a duly
authorized committee thereof, relating to the sale, issuance and registration of
the Shares, certified as of the date hereof by the Secretary of the Company;
5. The form of certificate evidencing a Common Share, certified as of the
date hereof by the Secretary of the Company;
6. A certificate of the SDAT as to the good standing of the Company, dated
as of a recent date;
7. A certificate executed by Neil E. Waisnor, Secretary of the Company,
dated September 30, 1998; and
8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms.
4. Any Documents submitted to us as originals are authentic. Any
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All
public records reviewed or relied upon by us or on our behalf are true and
complete. All statements and information contained in the Documents are true
and complete. There has been no oral or written modification of or amendment to
any of the Documents, and there has been no waiver of any provision of any of
the Documents, by action or omission of the parties or otherwise.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
<PAGE>
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a real estate investment trust duly formed and existing
under and by virtue of the laws of the State of Maryland and is in good standing
with the SDAT.
2. The Shares, upon the due execution, countersignature and delivery of
certificates evidencing the Shares against payment therefor and otherwise in the
manner contemplated by the Board of Trustees of the Company, or duly authorized
committee thereof, authorizing their issuance, will be (assuming that upon
issuance, the total number of Common Shares issued and outstanding will not
exceed the total number of Common Shares that the Company is then authorized to
issue) duly authorized, validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the State of
Maryland and we do not express any opinion herein concerning any other law. We
express no opinion as to compliance with the securities (or "blue sky") laws or
the real estate syndication laws of the State of Maryland.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as
an exhibit to the Registration Statement, and, accordingly, may not be relied
upon by, quoted in any manner to, or delivered to any other person or entity
(except Mayer, Brown & Platt, counsel to the Company) without, in each instance,
our prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of the name of our firm in the section entitled "Legal
Matters" in the Registration Statement. In giving this consent, we do not admit
that we are within the category of persons whose consent is required by Section
7 of the 1933 Act.
Very truly yours,
Ballard Spahr Andrews & Ingersoll, LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports covering the historical
financial statements of Cabot Industrial Trust, dated March 27, 1998, and Cabot
Partners Limited Partnership, dated March 27, 1998, included in Cabot Industrial
Trust's Form 10-K, as amended, for the year ended December 31, 1997 and to all
references to our Firm included in this registration statement on Form S-8.
Arthur Andersen LLP
Boston, Massachusetts
September 28, 1998
