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Registration No. 333-______
As filed with the Securities and Exchange Commission on May 7, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SECURITY CAPITAL INDUSTRIAL TRUST
(Exact Name of Registrant as Specified in its Charter)
Maryland
(State or Other Jurisdiction of Incorporation or Organization)
74-2604728
(I.R.S. Employer Identification No.)
14100 East 35th Place, Aurora, Colorado 80011
(Address of Principal Executive Offices) (Zip Code)
SECURITY CAPITAL INDUSTRIAL TRUST
SHARE OPTION PLAN FOR OUTSIDE TRUSTEES
(Full Title of the Plan)
Jeffrey A. Klopf, Secretary
Security Capital Industrial Trust
14100 East 35th Place
Aurora, Colorado 80011
(Name and Address of Agent for Service)
(303) 375-9292
(Telephone Number, including Area Code, of Agent for Service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to Be to Be Price Per Offering Registration
Registered Registered/1/ Share/2/ Price/2/ Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of
Beneficial Interest,
$.01 par value 100,000 Shares $19.32875 $1,932,875 $586
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</TABLE>
/1/ Also registered hereby are an indeterminate number of additional Common
Shares of Beneficial Interest that may become issuable pursuant to the
anti-dilution provisions of the plan.
/2/ In accordance with Rule 457(h)(1), the offering price of Common Shares of
Beneficial Interest currently subject to options was computed upon the
basis of the exercise price. The number of such shares and respective per
share exercise prices are as follows: 4,000 shares at $15.50; 6,000 shares
at $16.00; and 8,000 shares at $17.50. The offering price for the remaining
82,000 shares for which options have not been awarded was computed upon the
basis of the average of the high and low sale prices of the Common Shares
of Beneficial Interest reported on the New York Stock Exchange on April 30,
1997, which was $19.9375.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by the registrant
with the Securities and Exchange Commission (File No. 1-12846), are incorporated
by reference herein and shall be deemed to be a part hereof:
(a) The registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The registrant's Current Reports on Form 8-K filed January 27, 1997,
January 30, 1997 and March 26, 1997;
(c) The description of the registrant's Common Shares of Beneficial
Interest contained in the registrant's registration statement on Form
8-A; and
(d) The description of the registrant's preferred share purchase rights
contained in the registrant's registration statement on Form 8-A.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 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 have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and shall be deemed a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Shares of Beneficial Interest
registered hereunder will be passed upon for the registrant by the law firm of
Mayer, Brown & Platt, Chicago, Illinois. Mayer, Brown & Platt has represented
and is currently representing the registrant and certain of its affiliates.
Item 6. Indemnification of Directors and Officers.
Article 4, Section 11, of the registrant's Amended and Restated Declaration
of Trust provides as follows with respect to indemnification of trustees:
"The Trust shall indemnify and hold harmless each Trustee from and
against all claims and liabilities, whether they proceed to judgment or are
settled, to which such Trustee may become subject by reason of his being or
having been a Trustee, or by reason of any action alleged to have been
taken or omitted by him as Trustee, and shall reimburse him for all legal
and other expenses reasonably incurred by him in connection with any such
claim or liability, including any claim or liability arising under the
provisions of federal or state securities laws; provided, however, that no
Trustee shall be indemnified or reimbursed under the foregoing provisions
in relation to any matter unless it shall have been adjudicated that his
action or omission did not constitute willful misfeasance, bad faith or
gross negligence in the conduct of his duties, or, unless, in the absence
of such an adjudication, the Trust shall have received a
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written opinion from independent counsel, approved by the Trustees, to the
effect that if the matter of willful misfeasance, bad faith or gross
negligence in the conduct of duties had been adjudicated, it would have
been adjudicated in favor of such Trustee. The Trust, without requiring a
preliminary determination of the ultimate entitlement to indemnification,
shall pay or reimburse reasonable expenses incurred by any Trustee in
connection with any threatened, pending or completed action, suit or
proceeding to which such Trustee is, was or at any time becomes a party or
is threatened to be made a party, as a result directly or indirectly, of
serving at any time as a Trustee. The rights accruing to a Trustee under
these provisions shall not exclude any other right to which he may be
lawfully entitled, nor shall anything herein contained restrict the right
of the Trust to indemnify or reimburse such Trustee in any proper cause
even though not specifically provided for herein."
Article 9, Section 1 of the registrant's Amended and Restated Declaration
of Trust provides as follows with respect to the limitation of liability of
trustees and officers and indemnification:
"A Trustee or officer of the Trust shall not be liable for monetary
damages to the Trust or its shareholders for any act or omission in the
performance of his duties unless:
(1) The Trustee or officer actually received an improper benefit in money,
property or services (in which case, such liability shall be for the
amount of the benefit in money, property or services actually
received);
(2) 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
action being adjudicated;
(3) The Trustee's or officer's action or failure to act constitutes
willful misconduct or deliberate recklessness; or
(4) Such liability to the Trust is specifically imposed upon Trustees or
officers by statute."
Article 9, Section 6 of the registrant's Amended and Restated 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, with persons or
entities which are not regularly engaged in the business of providing
insurance coverage, 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, (i) create a trust fund, (ii) establish any form of
self-insurance, (iii) secure its indemnity obligation by grant of any
security interest or other lien on the assets of the corporation, or (iv)
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 of Trustees 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 of Trustees 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."
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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 he or she 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. In addition, the registrant has entered into indemnity
agreements with each of its trustees who is not also an officer of the
registrant which provide for indemnification and advancement of expenses to the
fullest lawful extent permitted by Maryland law in connection with any pending
or completed action, suit or proceeding by reason of serving as a trustee, and
the registrant has established a trust to fund payments under the
indemnification agreements.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
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, as amended (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;
(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) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or 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.
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(b) 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 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to trustees, officers and controlling persons of the
registrant pursuant to the provisions of the registrant's charter or
bylaws 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 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
the 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.
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Security Capital Industrial
Trust, a Maryland real estate investment trust, and each of the undersigned
trustees and officers of Security Capital Industrial Trust, hereby constitutes
and appoints Thomas G. Wattles, K. Dane Brooksher, Irving F. Lyons III, M.
Gordon Keiser, Edward F. Long, Jeffrey A. Klopf, Ariel Amir, Edward J.
Schneidman and Michael T. Blair 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, with full power to act alone, to sign any and all amendments to this
registration statement (including post-effective amendments thereto, and other
documents in connection therewith), and to file the same, 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 and to all intents and purposes as it or he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
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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 Aurora, State of Colorado, on the 6th day of May,
1997.
Security Capital Industrial Trust
By: /s/ K. Dane Brooksher
-----------------------------
K. Dane Brooksher
Co-Chairman and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on the dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas G. Wattles Non-executive Chairman and May 6, 1997
- -------------------------- Trustee
Thomas G. Wattles
/s/ K. Dane Brooksher Co-Chairman, Chief Operating May 6, 1997
- -------------------------- Officer and Trustee
K. Dane Brooksher
/s/ Irving F. Lyons III Co-Chairman, Chief May 6, 1997
- -------------------------- Investment Officer and Trustee
Irving F. Lyons III
/s/ M. Gordon Keiser Senior Vice President May 6, 1997
- -------------------------- (Principal Financial Officer)
M. Gordon Keiser
/s/ Edward F. Long Vice President and Controller May 6, 1997
- -------------------------- (Principal Accounting Officer)
Edward F. Long
/s/ Stephen L. Feinberg Trustee May 6, 1997
- --------------------------
Stephen L. Feinberg
/s/ Donald P. Jacobs Trustee May 6, 1997
- --------------------------
Donald P. Jacobs
/s/ William G. Myers Trustee May 6, 1997
- --------------------------
William G. Myers
/s/ John E. Robson Trustee May 6, 1997
- --------------------------
John E. Robson
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
4.1 Security Capital Industrial Trust Share Option Plan for Outside
Trustees (incorporated by reference to Exhibit 10.18 to the
registrant's Form 10-Q for the quarter ended June 30, 1994).
4.2 Amended and Restated Declaration of Trust of the registrant
(incorporated by reference to Exhibit 4.1 to the registrant's Form
S-11 No. 33-73382).
4.3 First Certificate of Amendment of Amended and Restated Declaration of
Trust of the registrant (incorporated by reference to Exhibit 3.1 to
the registrant's Form 8-K dated June 14, 1994).
4.4 Second Articles of Amendment of Amended and Restated Declaration of
Trust of the registrant (incorporated by reference to Exhibit 4.3 to
the registrant's Form S-11 No. 33-87306).
4.5 Articles Supplementary relating to the registrant's Series A
Preferred Shares (incorporated by reference to Exhibit 4.8 to the
registrant's Form 8-A relating to such shares).
4.6 First Articles of Amendment to Articles Supplementary relating to the
registrant's Series A Preferred Shares (incorporated by reference to
Exhibit 10.3 to the registrant's Form 10-Q for the quarter ended
September 30, 1995).
4.7 Articles Supplementary relating to the registrant's Series B
Preferred Shares (incorporated by reference to Exhibit 4.1 to the
registrant's Form 8-K dated February 14, 1996.)
4.8 Articles Supplementary relating to the registrant's Series C
Preferred Shares (incorporated by reference to Exhibit 4.8 to the
registrant's Form 8-A relating to such shares).
4.9 Bylaws of the registrant (incorporated by reference to Exhibit 4.3 to
the registrant's Form S-11 No. 33-83208).
4.10 Rights Agreement, dated as of December 31, 1993, between the
registrant and State Street Bank and Trust Company, as Rights Agent,
including form of Rights Certificate (incorporated by reference to
Exhibit 4.4 to the registrant's Form S-11 No. 33-78080).
4.11 First Amendment to Rights Agreement, dated as of February 15, 1995,
between the registrant, State Street Bank and Trust Company and The
First National Bank of Boston, as successor Rights Agent
(incorporated by reference to Exhibit 4.6 to the registrant's Form
S-3 No. 33-90940).
4.12 Second Amendment to Rights Agreement, dated as of June 22, 1995, by
and between the registrant and the First National Bank of Boston, as
successor Rights Agent (incorporated by reference to Exhibit 3.1 to
the registrant's Form 10-Q for the quarter ended September 30, 1995).
4.13 Form of share certificate for common shares of beneficial interest of
the registrant (incorporated by reference to Exhibit 4.4 to the
Registrant's Form S-11 No. 33-73382).
5 Opinion of Mayer, Brown & Platt as to the legality of the securities
registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Mayer, Brown & Platt (included in its opinion filed as
Exhibit 5 hereto).
24 Power of Attorney (included at page 6 hereof).
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Exhibit 5
May 7, 1997
The Board of Trustees
Security Capital Industrial Trust
14100 East 35th Place
Aurora, Colorado 80011
Gentlemen:
We have acted as counsel to Security Capital Industrial Trust, a Maryland
real estate investment trust (the "Company"), in connection with the
registration of 100,000 shares of the Company's common shares of beneficial
interest, par value $.01 per share (the "Shares"), issuable pursuant to the
Security Capital Industrial Trust Share Option Plan for Outside Trustees (the
"Plan"), on the Form S-8 Registration Statement filed by the Company with the
Securities and Exchange Commission on the date hereof (the "Registration
Statement").
As such counsel, we have examined originals or copies certified or
otherwise identified to our satisfaction of the Plan, the Company's Amended and
Restated Declaration of Trust, as amended and supplemented (the "Declaration of
Trust"), and Bylaws, resolutions of the Company's Board of Trustees and such
other records, certificates and documents and such questions of law as we
considered necessary or appropriate for purposes of this opinion. 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
Shares, when sold upon the exercise of options in accordance with the terms of
the Plan, will be duly authorized, legally issued, fully paid and, except as
described below, nonassessable.
Our opinion relating to the nonassessability of the Shares does not pertain
to the potential liability of shareholders of the Company for debts of the
Company. Section 5-350 of the Maryland Courts and Judicial Proceedings Code
provides that "a shareholder . . . of a real estate investment trust . . . is
not personally liable for the obligations of the real estate investment trust."
The Declaration of Trust provides that no shareholder shall be personally liable
in connection with the Company's property or the affairs of the Company. The
Declaration of Trust further provides that the Company shall indemnify and hold
harmless shareholders against all claims and liabilities and related reasonable
expenses to which they become subject by virtue of their status as current or
former shareholders. In addition, we have been advised that the Company, as a
matter of practice, inserts a clause in its business,
<PAGE>
The Board of Trustees
May 7, 1997
Page 2
management and other contracts that provides that shareholders shall not be
personally liable thereunder. Accordingly, no personal liability should attach
to the Company's shareholders for contract claims under any contract containing
such a clause where adequate notice is given. However, with respect to tort
claims, contract claims where shareholder liability is not so negated, claims
for taxes and certain statutory liability, the shareholders may, in some
jurisdictions, be personally liable for such claims and liabilities.
We hereby 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
By: Edward J. Schneidman
--------------------
Edward J. Schneidman
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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 dated February 10,
1997 included in Security Capital Industrial Trust's Form 10-K for the year
ended December 31, 1996.
ARTHUR ANDERSEN LLP
Chicago, Illinois
May 6, 1997
