<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMERICAN REAL ESTATE INVESTMENT CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 84-1246585
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
</TABLE>
620 W. GERMANTOWN PIKE, SUITE 200
PLYMOUTH MEETING, PENNSYLVANIA 19462
(610) 834-7950
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
------------------------
AMERICAN REAL ESTATE INVESTMENT
CORPORATION AMENDED AND RESTATED 1993
OMNIBUS INCENTIVE PLAN
(Full title of the Plan)
------------------------
JEFFREY E. KELTER
PRESIDENT
AMERICAN REAL ESTATE INVESTMENT CORPORATION
620 W. GERMANTOWN PIKE, SUITE 200
PLYMOUTH MEETING, PENNSYLVANIA 19462
(610) 834-7950
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPIES TO:
ROBERT E. KING, JR. ESQ.
BONNIE A. BARSAMIAN, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per
share.............................. 3,050,000 shares $14.25 $43,462,500 $12,082.58
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), the number of shares being registered shall be adjusted
to include any additional shares which may become issuable as a result of
stock splits, stock dividends, or similar transactions in accordance with
provisions of the plan.
(2) Estimated, pursuant to Rule 457(h), on the basis of the average of the high
and the low prices of the Company's Common Stock reported on the American
Stock Exchange on January 11, 1999.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act and the introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We incorporate by reference into this Registration Statement the following
documents which we previously filed with the Securities and Exchange Commission
(the "Commission") under the File Number 1-12514:
(a) our Annual Report on Form 10-KSB for the fiscal year ended December
31, 1997;
(b) our Quarterly Reports on Form 10-Q for the calendar quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
(c) our Current Report on Form 8-K filed January 23, 1998, our Current
Report on Form 8-K/A filed February 24, 1998, our Current Reports on Form
8-K filed April 10, 1998 and May 15, 1998, our Current Report on Form 8-K/A
filed June 10, 1998, our Current Report on Form 8-K filed July 7, 1998, our
Current Report on Form 8-K/A filed July 14, 1998, our Current Report on Form
8-K filed August 13, 1998, our Current Report on Form 8-K filed September 3,
1998, our Current Report on Form 8-K filed November 13, 1998, our Current
Report on Form 8-K filed December 18, 1998, our Current Report on Form 8-K
filed January 8, 1999 and our Current Report on Form 8-K/A filed January 13,
1999;
(d) the description of our Common Stock contained in our Registration
Statement on Form 8-A filed on August 24, 1994 (including any amendments or
reports filed for the purpose of updating such description); and
(e) all other reports we have filed pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since
December 31, 1997.
When we file documents in accordance with Section 13(a), 13(c), 14 and 15(d)
of the Exchange Act between the date of this Registration Statement and the time
we file a post-effective amendment to the Registration Statement saying all the
securities which are the subject of that Registration Statement have been sold
or deregistering any securities which have not been sold, the documents we file
will be incorporated into this Registration Statement and will be a part of it
beginning on the date the documents are filed. If any documents which we file
changes anything said in this Registration Statement or in an earlier document
which is incorporated into this Registration Statement, the later document will
modify or supersede what is said in this Registration Statement or the earlier
document.
You may request a copy of these filings at no cost, other than exhibits to
those documents which are not specifically incorporated by reference, by writing
or telephoning us at the following address:
American Real Estate Investment Corporation
620 W. Germantown Pike--Suite 200
Plymouth Meeting, Pennsylvania 19462
Attention: Investor Relations
Telephone: (610) 834-7950
2
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Maryland General Corporation Law (the "MGCL"), our
Charter provides that we shall indemnify (i) our directors and officers to the
fullest extent required or permitted by Maryland law, including the advance of
expenses under the procedures and to the full extent permitted by law and (ii)
other employees and agents to such extent as shall be authorized by our Board of
Directors or our By-laws and be permitted by law. The MGCL permits a corporation
to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities, unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith, or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful.
The MGCL permits the Articles of Incorporation of a Maryland corporation to
include a provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages, except to the extent that
(1) it is provided that the person actually received an improper benefit or
profit in money, property or services or (2) a judgment or other final
adjudication is entered in a proceeding based on a finding that the person's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding. Our
Charter contains a provision providing for elimination of the liability of our
directors or officers to us or our stockholders for money damages to the maximum
extent permitted by Maryland law from time to time.
We have a director and officer liability insurance policy with a $5,000,000
limit of liability and a company retention of $75,000 in the aggregate for each
claim.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
3
<PAGE>
ITEM 8. EXHIBITS
<TABLE>
<C> <S>
4.1 Amended and Restated Articles of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 of our Form 8-K, filed with the Commission on
December 22, 1997).
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit 3.3 of our Form
8-K, filed with the Commission on December 22, 1997).
4.3 Amended and Restated Agreement of Limited Partnership of American Real Estate
Investment, L.P. (incorporated by reference to Exhibit 10.1 of our Form 8-K,
filed with the Commission on December 22, 1997).
4.4 Specimen of Common Stock Certificate (incorporated by reference to Exhibit 4(a)
of our Amendment No.2 to Form S-11, filed with the Commission on October 8,
1993).
5.1 Opinion of Rogers & Wells LLP (Counsel).
5.2 Opinion of Piper & Marbury L.L.P. (Counsel).
23.1 Consent of Rogers & Wells LLP (included in Exhibit 5.1).
23.2 Consent of Piper & Marbury L.L.P. (included in Exhibit 5.2).
23.3 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on signature pages hereto).
99.1 American Real Estate Investment Corporation Amended and Restated 1993 Omnibus
Incentive Plan (incorporated by reference to Exhibit A of our Proxy Statement,
filed with the Commission on November 24, 1998).
99.2 Form of Restricted Stock Award Agreement.
</TABLE>
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 "Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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) 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 (a)(1)(i) and (a)(1)(ii) shall not apply
to information contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
4
<PAGE>
(2) That, for the purpose of determining any liability under the 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 of
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 Act, each filing of the Registrant's annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of the employee benefit plan's annual report
pursuant to section 15(d) or 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 herein, 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 Act may be
permitted to directors, 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 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 Act and will be governed by the final adjudication of
such issue.
5
<PAGE>
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 New York and State of New York on January 13, 1999.
<TABLE>
<S> <C> <C>
AMERICAN REAL ESTATE INVESTMENT CORPORATION
By: /s/ JEFFREY E. KELTER
-----------------------------------------
Jeffrey E. Kelter
PRESIDENT
</TABLE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Jeffrey E. Kelter, Timothy A. Peterson and
Timothy E. McKenna, and each of them, 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 any and all
amendments, including any post-effective amendments, to this Registration
Statement on Form S-8 and any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
of 1933, as amended, and any and all applications and other documents in
connection therewith, with the Securities and Exchange Commission and any state
or other securities authority, 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 and about the premises, 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 or 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ ------------------------------ -------------------
<C> <C> <S>
/s/ DAVID F. MCBRIDE Chairman, Secretary and
- ------------------------------ Director (Principal January 13, 1999
David F. McBride Executive Officer)
/s/ JEFFREY E. KELTER President and
- ------------------------------ Director (Principal January 13, 1999
Jeffrey E. Kelter Executive Officer)
/s/ TIMOTHY A. PETERSON Senior Vice President and
- ------------------------------ Chief Financial Officer January 13, 1999
Timothy A. Peterson (Principal Financial Officer)
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------ ------------------------------ -------------------
<C> <C> <S>
/s/ TIMOTHY E. MCKENNA Vice President--Finance and
- ------------------------------ Treasurer (Principal January 13, 1999
Timothy E. McKenna Accounting Officer)
/s/ TIMOTHY MCBRIDE
- ------------------------------ Director January 13, 1999
Timothy McBride
/s/ ROBERT BRANSON
- ------------------------------ Director January 13, 1999
Robert Branson
/s/ JAMES MULVIHILL
- ------------------------------ Director January 13, 1999
James Mulvihill
/s/ EVAN ZUCKER
- ------------------------------ Director January 13, 1999
Evan Zucker
/s/ FRANCESCO GALESI
- ------------------------------ Director January 13, 1999
Francesco Galesi
/s/ MICHAEL FALCONE
- ------------------------------ Director January 13, 1999
Michael Falcone
/s/ DAVID LESSER
- ------------------------------ Director January 13, 1999
David Lesser
</TABLE>
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Registrant (incorporated by reference to
Exhibit 3.1 of our Form 8-K, filed with the Commission on December 22, 1997).
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit 3.3 of our Form 8-K, filed with the
Commission on December 22, 1997).
4.3 Amended and Restated Agreement of Limited Partnership of American Real Estate Investment, L.P.
(incorporated by reference to Exhibit 10.1 of our Form 8-K, filed with the Commission on December 22,
1997).
4.4 Specimen of Common Stock Certificate (incorporated by reference to Exhibit 4(a) of our Amendment No.2
to Form S-11, filed with the Commission on October 8, 1993).
5.1 Opinion of Rogers & Wells LLP (Counsel).
5.2 Opinion of Piper & Marbury L.L.P. (Counsel).
23.1 Consent of Rogers & Wells LLP (included in Exhibit 5.1).
23.2 Consent of Piper & Marbury L.L.P. (included in Exhibit 5.2).
23.3 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on signature pages hereto).
99.1 American Real Estate Investment Corporation Amended and Restated 1993 Omnibus Incentive Plan
(incorporated by reference to Exhibit A of our Proxy Statement, filed with the Commission on November
24, 1998).
99.2 Form of Restricted Stock Award Agreement.
</TABLE>
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF ROGERS & WELLS LLP]
January 13, 1999
American Real Estate Investment Corporation
Plymouth Meeting Executive Campus
620 W. Germantown Pike, Suite 200
Plymouth Meeting, PA 19462
Ladies and Gentlemen:
We have acted as special counsel to American Real Estate Investment
Corporation, a Maryland corporation (the "Company"), in connection with the
preparation and filing of the Company's Registration Statement on Form S-8 (as
the same may be amended or supplemented from time to time, the "Registration
Statement") with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), covering
3,050,000 shares (the "Shares") of the Company's Common Stock, par value $.001
per share, which have been reserved by the Company for issuance pursuant to the
Company's Amended and Restated 1993 Omnibus Incentive Plan (the "Plan").
In rendering the opinions expressed herein, we have examined the
Registration Statement, the Company's Amended and Restated Articles of
Incorporation (the "Charter") and the Amended and Restated Bylaws and such
corporate proceedings of the Company and such other documents as we have deemed
necessary. As to questions of fact material to this opinion, we have relied on
certificates of officers of the Company and have not independently verified the
accuracy of the matters contained therein.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents, certificates and instruments submitted to us as
originals, the conformity with originals of all documents submitted to us as
copies and the absence of any amendments or modifications to those items
reviewed by us.
In rendering the opinions set forth herein, we have assumed that (i) prior
to the issuance of any shares of Common Stock, there will exist, under the
Charter, the requisite number of authorized but unissued shares of Common Stock;
and (ii) appropriate certificates representing shares of Common Stock will be
executed and delivered upon the issuance and sale of any such Shares, and that
such certificates will comply with all applicable requirements of Maryland law.
We have further assumed that (i) the awards and grants under the Plan
pursuant to which the Shares are issuable will have been duly authorized and
issued by the Company in accordance with the terms and provisions of the Plan
and in accordance with the Charter and applicable Maryland law, (ii) the
resolutions authorizing the Company to issue the Shares in accordance with the
terms and provisions of the Plan will remain in effect and unchanged at all
times during which the Shares are issued by the Company, and (iii) the
Registration Statement, and any amendments thereto, at the time of issuance of
the Shares, will continue to be effective.
Based upon the foregoing and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that the
Shares have been duly authorized and, upon issuance and delivery of the Shares
by the Company against payment therefor in accordance with the terms and
provisions of the Plan, such Shares will be validly issued, fully paid and
nonassessable by the Company.
The opinions stated herein are given as of the date hereof and are limited
to the federal laws of the United States, the laws of the State of New York and
the laws of the State of Maryland. To the extent that the opinions set forth
herein are dependent on the laws of the State of Maryland, we have relied on the
opinion of Piper & Marbury L.L.P., dated the date hereof, a copy of which is
being filed as an exhibit to the Registration Statement. Our opinion, to the
extent based upon such reliance, is limited by the qualifications, assumptions
and conditions set forth in such opinion in addition to those set forth herein.
<PAGE>
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving this consent, we do not concede
that we are within the category of persons whose consent is required under the
Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ ROGERS & WELLS LLP
--------------------------
Rogers & Wells LLP
2
<PAGE>
EXHIBIT 5.2
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH WASHINGTON
36 SOUTH CHARLES STREET NEW YORK
BALTIMORE, MARYLAND 21201-3018 PHILADELPHIA
410-539-2530 EASTON
FAX: 410-539-0489
January 13, 1999
AMERICAN REAL ESTATE INVESTMENT CORPORATION
620 West Germantown Pike, Suite 200
Plymouth Meeting, Pennsylvania 19462
Ladies and Gentlemen:
We have acted as Maryland counsel to American Real Estate Investment
Corporation, a Maryland corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), pursuant
to a Registration Statement on Form S-8 of the Company (the "Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission"), of up to 3,050,000 shares (the "Shares") of Common Stock, par
value $.001 per share, of the Company to be issued pursuant to the American Real
Estate Investment Corporation Amended and Restated 1993 Omnibus Incentive Plan
(the "Plan"). This opinion is being provided at your request in connection with
the filing of the Registration Statement.
In our capacity as special Maryland counsel, we have reviewed originals or
copies, certified or otherwise identified to our satisfaction, of the
Registration Statement, the Charter and By-Laws of the Company as in effect on
the date hereof, the Plan, minutes of the proceedings of the Company's Board of
Directors authorizing the issuance of the Shares (the "Board Resolutions"), an
Officer's Certificate of the Company dated the date hereof (the "Certificate"),
and such other documents as we have considered necessary. In such examination of
the aforesaid documents, we have assumed, without independent investigation, the
genuineness of all signatures, the legal capacity of all individuals who have
executed any of the aforesaid documents, the authenticity of all documents
submitted to us as originals, the conformity with originals of all documents
submitted to us as copies (and the authenticity of the originals of such
copies), and the accuracy and completeness of all public records reviewed by us.
As to factual matters, we have relied on the Certificate and have not
independently verified the matters stated therein.
Based upon the foregoing, having regard for such legal considerations as we
deem relevant, and limited in all respects to applicable Maryland law, we are of
the opinion and so advise you that the Shares have been duly authorized and,
upon the issuance and delivery of the Shares in accordance with the Board
Resolutions and the terms of the Plan, will be validly issued, fully paid, and
nonassessable.
This opinion is limited to the laws of the State of Maryland, exclusive of
the securities or "blue sky" laws of the State of Maryland. This opinion is
rendered as of the date hereof. We assume no obligation to update such opinion
to reflect any facts or circumstances which may hereafter come to our attention
or changes in the law which may hereafter occur. This opinion is limited to the
matters set forth herein, and no other opinion should be inferred beyond the
matters expressly stated. To the extent that any documents referred to herein
are governed by the law of a jurisdiction other than Maryland, we have assumed
that the laws of such jurisdiction are the same as the laws of the State of
Maryland.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.2 to the Registration Statement and to the reference to our firm under
the heading "Legal Matters" in the Registration Statement. In giving our
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Commission thereunder. This opinion is limited to the matters set forth
herein, and no other opinion should be inferred beyond the matters expressly
stated.
Very truly yours,
/s/ Piper & Marbury L.L.P.
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated March 10, 1998 included in American Real
Estate Investment Corporation's Form 10-KSB for the year ended December 31,
1997 (and to all references to our Form) included in this Registration
Statement on Form S-8 of American Real Estate Investment Corporation.
/s/ Arthur Andersen LLP
Philadelphia, Pa.
January 13, 1999
<PAGE>
EXHIBIT 99.2
AMERICAN REAL ESTATE INVESTMENT CORPORATION
AMENDED AND RESTATED 1993 OMNIBUS INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
AGREEMENT by and between American Real Estate Investment Corporation, a
Maryland corporation (the "Company") and (the "Grantee"), dated as
of the day of December, 1998.
WHEREAS, the Company maintains the American First Real Estate Investment
Corporation Amended and Restated 1993 Omnibus Incentive Plan (the "Plan")
(capitalized terms used but not defined herein shall have the respective
meanings ascribed thereto by the Plan);
WHEREAS, the Grantee is a Key Employee; and
WHEREAS, the Committee has determined that it is in the best interests of
the Company and its stockholders to grant Restricted Stock to the Grantee
subject to the terms and conditions set forth below.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Grant of Restricted Stock.
The Company hereby grants the Grantee Shares of Restricted Stock
of the Company, subject to the following terms and conditions and subject to the
provisions of the Plan. The Plan is hereby incorporated herein by reference as
though set forth herein in its entirety.
2. Restrictions and Conditions.
The Restricted Stock awarded pursuant to this Agreement and the Plan shall
be subject to the following restrictions and conditions:
(i) Subject to the provisions of the Plan and this Agreement, during a
period commencing with the date of such award and ending on the date the
period of forfeiture with respect to such Shares lapses, the Grantee
shall not be permitted voluntarily or involuntarily to sell, transfer,
pledge, anticipate, alienate, encumber or assign Shares of Restricted
Stock awarded under the Plan (or have such Shares attached or
garnished). Subject to clauses (ii), (iii), (iv) and (v) below, the
period of forfeiture with respect to Shares granted hereunder shall
lapse for 50% of such Shares on the day of December, 1999 and 50% of
such Shares on the day of December 2000.
(ii) Except as provided in the foregoing clause (i), the Grantee shall have,
in respect of the Shares of Restricted Stock, all of the rights of a
stockholder of the Company, including the right to vote the Shares, and
the right to receive any cash dividends. Certificates for shares of
stock (not subject to restrictions) shall be delivered to the Grantee
promptly after, and only after, the period of forfeiture shall lapse
without forfeiture in respect of such Shares.
(iii) Subject to clauses (iv) and (v) below, if the Grantee's employment with
the Company and its Affiliates terminates during the applicable period
of forfeiture, then all Shares still subject to restriction shall
thereupon, and with no further action, be forfeited by the Grantee and
reacquired by the Company.
(iv) In the event the Grantee's employment terminates on account of death,
"disability" (as defined below) or "retirement" (as defined below), or
in the event of a Change in Control, during the applicable period of
forfeiture, restrictions will immediately lapse on all Restricted Stock
granted to the applicable Grantee and the Shares granted hereunder
shall thereupon become Released Securities. For purposes of this
Section 2(iv), (i) "disability" means the occurrence of an event which
would entitle an employee of the Company to the payment of disability
income under one of the Company's approved long-term disability income
plans or a long-term disability as determined by the Committee in its
absolute discretion pursuant to any other standard as may be adopted by
the Committee, and "retirement" means termination of employment (other
than for
<PAGE>
cause) of a Grantee on or after the Grantee's attainment of age 65, or
earlier, if with the consent of the Committee.
(v) If the Key Employee is party to an employment agreement which provides
that restricted stock shall be subject to terms other than those set
forth above, the terms of such employment agreement shall apply with
respect to the Shares granted hereby.
3. Certain Terms of Restricted Stock.
(a) The Grantee shall be issued a stock certificate in respect of Shares
granted under this Agreement. Such certificate shall be registered in the
name of the Grantee. The certificates for Shares issued hereunder may
include any legend which the Board deems appropriate to reflect any
restrictions on transfer hereunder, or as the Board may otherwise deem
appropriate, and, without limiting the generality of the foregoing, shall
bear a legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock, substantially in the following form:
"THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF
STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE) OF AN AGREEMENT ENTERED
INTO BETWEEN THE REGISTERED OWNER AND AMERICAN REAL ESTATE
INVESTMENT CORPORATION. COPIES OF SUCH AGREEMENT ARE ON
FILE IN THE OFFICES OF AMERICAN REAL ESTATE INVESTMENT
CORPORATION AT 620 WEST GERMANTOWN PIKE, SUITE 200,
PLYMOUTH MEETING, PENNSYLVANIA, 19462.
(b) Stock certificates evidencing the Shares granted hereby shall be held in
custody by the Company until the restrictions thereon shall have lapsed,
and, as a condition to the grant of any Restricted Stock, the Grantee
shall deliver a stock power, endorsed in blank, relating to the stock
covered by such purchase. If and when such restrictions so lapse, the
stock certificates shall be delivered by the Company to the Grantee or
his designee.
4. Miscellaneous.
(a) The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or
their respective successors and legal representatives. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(b) Without limiting any power and authority otherwise possessed by the
Committee, the Committee shall have the full power and authority to
interpret and administer this Agreement and any other instrument or
agreements relating to this Agreement. The Committee's actions in this
regard shall be final, conclusive and binding upon all Persons, including
without limitation the Grantee and the Grantee's beneficiaries.
(c) In the event that the disposition of Shares granted hereunder is not
covered by a then current registration statement under the Securities Act
of 1933, as amended (the "Securities Act"), and is not otherwise exempt
from such registration, such Shares shall be restricted against transfer
to the extent required under the Securities Act, and the Committee may
require the Grantee, as a condition precedent to receipt of such Shares,
to represent to the Company in writing that such Shares will be disposed
of only if registered for sale under the Securities Act or if there is an
available exemption for such disposition.
(d) The Committee may, in its discretion, require the Grantee to pay to the
Company at the end of the applicable restriction period (or other income
recognition event, such as election under
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Section 83(b) of the Code) the amount that the Committee deems necessary
to satisfy the Company's obligation to withhold federal, state or local
income or other taxes incurred by reason of the lifting of restrictions
(or other such event). The Grantee may, with the Committee's approval,
elect to have such tax withholding satisfied, in whole or in part, by
authorizing the Company to withhold a number of shares of Restricted
Stock, otherwise to become Released Securities pursuant to this Agreement
as of the date withholding is effected, that would satisfy the
withholding amount due. Notwithstanding anything contained in this
Agreement to the contrary, the Grantee's satisfaction of any
tax-withholding requirements imposed by the Committee shall be a
condition precedent to the release of any restrictions as may otherwise
be provided hereunder or under the Plan, and the failure of the Grantee
to satisfy such requirements with respect to the lapsing of restrictions
hereunder (or another income recognition event) shall cause the
Restricted Stock granted hereunder to be forfeited.
(e) All notices under this Agreement shall be in writing, and if to the
Company, shall be delivered to the Board or mailed to its principal
office, addressed to the attention of the Board; and if to the Grantee,
shall be delivered personally or mailed to the Grantee at the address
appearing in the records of the Company. Such addresses may be changed at
any time by written notice to the other party given in accordance with
this Section 4(e).
(f) The failure of the Grantee or the Company to insist upon strict
compliance with any provision of this Agreement or the Plan, or to assert
any right the Grantee or the Company, respectively, may have under this
Agreement or the Plan, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement or
the Plan.
(g) Nothing in this Agreement shall confer on the Grantee any right to
continue in the employ or other service of the Company or its Affiliates
or interfere in any way with the right of the Company or its Affiliates
and its stockholders to terminate the Grantee's employment or other
service at any time.
(h) This Agreement contains the entire Agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, with respect thereto.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Agreement
as of the day and year first above written.
AMERICAN REAL ESTATE
INVESTMENT CORPORATION
By:___________________________________
Name:_________________________________
Title:________________________________
______________________________________
[Grantee's Name]
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