As filed with the Securities and Exchange Commission on January 30, 1998
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 36-395116
(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. 1997 STOCK INCENTIVE PLAN
FIRST INDUSTRIAL REALTY TRUST, INC. DEFERRED INCOME PLAN
(Full title of the plans)
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Michael T. Tomasz
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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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered(1) Per Share Price Registration Fee
Registered
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<S> <C> <C> <C> <C>
Common Stock, 630,000 shares (2) $36.75(4) $23,152,500 $6,830
$.01 par value 4,370,000 shares (2) $35.82(5) $156,533,400 $46,178
500,000 shares (3) $36.75(4) $18,375,000 $5,421
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</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
First Industrial Realty Trust, Inc. 1997 Stock Incentive Plan (the "1997
Plan") and the First Industrial Realty Trust, Inc. Deferred Income Plan
(the "Deferred Income Plan") in the event of a stock dividend, reverse
stock split, split-up, recapitalization or other similar event.
(2) Shares registered for issuance under the 1997 Plan.
(3) Shares registered for issuance under the Deferred Income Plan.
(4) This estimate is made pursuant to Rules 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act"), 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 on January 29, 1998.
(5) This estimate is made pursuant to Rule 457(h) under the Securities Act
solely for purposes of determining the registration fee and is based upon
the price at which outstanding options may be exercised.
================================================================================
<PAGE>
AMENDMENT OF 1997 PLAN
On September 30, 1997, First Industrial Realty Trust, Inc. (the "Company")
filed a Registration Statement on Form S-8 (No. 333-36699) with the Securities
and Exchange Commission (the "Commission") under which 1,500,000 shares of
Common Stock were registered for issuance under the 1997 Plan. On December 4,
1997, the Board of Directors of the Company approved an amendment to the 1997
Plan to increase the number of shares of Common Stock that may be issued under
the 1997 Plan from 1,500,000 to 6,500,000, subject to adjustment in the event of
a stock dividend, reverse stock split, split-up, recapitalization or other
similar event. This Registration Statement increases to 6,500,000 the total
number of shares of Common Stock registered for issuance under the 1997 Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference the documents listed in (a)
through (o) below, which have previously been filed with the Commission:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1996, filed with the Commission (File No. 1-13102) pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) the Company's Quarterly Reports on Form 10-Q for the quarter ended
March 31, 1997, as amended by the Company's Form 10-Q/A No. 1 filed
May 30, 1997;
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997, as amended by Form 10-Q/A No. 1 filed August 26, 1997;
(d) the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(e) the Company's Current Report on Form 8-K filed February 12, 1997, as
amended by Form 8-K/A No. 1 filed April 10, 1997;
(f) the Company's Current Report on Form 8-K filed May 13, 1997;
(g) the Company's Current Report on Form 8-K filed June 6, 1997;
(h) the Company's Current Report on Form 8-K filed July 15, 1997 as
amended by Form 8-K/A No. 1 filed September 4, 1997 and Form 8-K/A No.
2 filed October 16, 1997;
(i) the Company's Current Report on Form 8-K filed September 11, 1997;
(j) the Company's Current Report on Form 8-K filed September 19, 1997;
(k) the Company's Current Report on Form 8-K filed September 29, 1997;
(l) the Company's Current Report on Form 8-K filed October 21, 1997;
(m) the Company's Current Report on Form 8-K filed November 14, 1997;
(n) the Company's Current Report on Form 8-K filed December 23, 1997, as
amended by Form 8-K/A No. 1 filed January 22, 1998; and
(o) the description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated June 23, 1994 and Form 8-A
filed September 24, 1997.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment hereto that indicates that all
securities offered hereunder have been sold or that 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.
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<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.
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 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 First Industrial Realty Trust, Inc. 1997 Stock Incentive Plan,
as amended.
4.2 First Industrial Realty Trust, Inc. Deferred Income Plan.
5.1 Opinion of Cahill Gordon & Reindel as to the legality of the
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.2 Consent of Cahill Gordon & Reindel (included in their opinion
filed as 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;
II-2
<PAGE>
(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 this Registration
Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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 Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this 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 herein, 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.
(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 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 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 Securities
Act of 1933 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 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.
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<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 Chicago, State of Illinois, on January 30, 1998.
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 we, the undersigned officers and
directors of First Industrial Realty Trust, Inc. hereby severally constitute and
appoint Michael J. Havala our true and lawful attorney with full power to him to
sign for us and in our names in the capacities indicated below, any and all
amendments to this Registration Statement, and generally to do all such things
in our names and in our capacities as officers and directors to enable First
Industrial Realty Trust, Inc. to comply with the provisions of the Securities
Act of 1933 and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to this Registration Statement.
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.
Signature Title Date
--------- ----- ----
/s/ Michael T. Tomasz Principal Executive January 30, 1998
- ------------------------------ Officer and Director
Michael T. Tomasz
/s/ Michael J. Havala Principal Financial and January 30, 1998
- ------------------------------ Accounting Officer
Michael J. Havala
/s/ Michael W. Brennan Chief Operating January 30, 1998
- ------------------------------ Officer and Director
Michael W. Brennan
/s/ Michael G. Damone Director January 30, 1998
- ------------------------------
Michael G. Damone
/s/ John L. Lesher Director January 20, 1998
- ------------------------------
John L. Lesher
/s/ Kevin W. Lynch Director January 16, 1998
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Kevin W. Lynch
/s/ John E. Rau Director January 30, 1998
- ------------------------------
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<PAGE>
Signature Title Date
--------- ----- ----
John E. Rau
/s/ Jay H. Shidler Chairman of the Board January 30, 1998
- ------------------------------ of Directors
Jay H. Shidler
/s/ Robert J. Slater Director January 30, 1998
- ------------------------------
Robert J. Slater
/s/ J. Steven Wilson Director January 30, 1998
- ------------------------------
J. Steven Wilson
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
4.1 First Industrial Realty Trust, Inc. 1997 Stock Incentive
Plan, as amended.
4.2 First Industrial Realty Trust, Inc. Deferred Income Plan
5.1 Opinion of Cahill Gordon & Reindel, counsel to
Registrant, as to the legality of the shares being
registered.
23.1 Consent of Coopers & Lybrand L.L.P.,
Independent Accountants.
23.2 Consent of Cahill Gordon & Reindel (included in their
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
II-6
Exhibit 4.1
FIRST INDUSTRIAL REALTY TRUST, INC.
1997 STOCK INCENTIVE PLAN
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. General Purpose of the Plan; Definitions.......................1
SECTION 2. Administration of Plan; Committee Authority to Select
Participants and Determine Awards.........................3
SECTION 3. Shares Issuable Under the Plan; Mergers; Substitution..........4
SECTION 4. Eligibility ...................................................4
SECTION 5. Stock Options..................................................4
SECTION 6. Restricted Stock Awards........................................7
SECTION 7. Performance Share Awards.......................................8
SECTION 8. Stock Appreciation Rights......................................8
SECTION 9. Dividend Equivalents...........................................9
SECTION 10. Tax Withholding................................................9
SECTION 11. Transfer, Leave of Absence, Etc...............................10
SECTION 12. Amendments and Termination....................................10
SECTION 13. Status of Plan................................................10
SECTION 14. Change of Control Provisions..................................10
SECTION 15. General Provisions............................................12
SECTION 16. Effective Date of Plan........................................12
SECTION 17. Governing Law.................................................12
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<PAGE>
FIRST INDUSTRIAL REALTY TRUST, INC.
1997 STOCK INCENTIVE PLAN
SECTION 1. General Purpose of the Plan; Definitions.
The name of the plan is the First Industrial Realty Trust, Inc. 1997 Stock
Incentive Plan (the "Plan"). The purpose of the Plan is to encourage and enable
the officers, employees and Directors of First Industrial Realty Trust, Inc.
(the "Company") and its Affiliates upon whose judgment, initiative and efforts
the Company largely depends for the successful conduct of its business to
acquire a proprietary interest in the Company. It is anticipated that providing
such persons with a direct stake in the Company's welfare will assure a closer
identification of their interests with those of the Company, thereby stimulating
their efforts on the Company's behalf and strengthening their desire to remain
with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Affiliate" means any entity other than the Company and its Subsidiaries
that is designated by the Board or the Committee as a participating employer
under the Plan, provided that the Company directly or indirectly owns at least
20% of the combined voting power of all classes of stock of such entity or at
least 20% of the ownership interests in such entity.
"Award" or "Awards", except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Restricted Stock Awards, Performance Share Awards and Dividend
Equivalents.
"Board" means the Board of Directors of the Company.
"Cause" means and shall be limited to a vote of the Board to the effect
that the participant should be dismissed as a result of (i) any material breach
by the participant of any agreement to which the participant and the Company or
an Affiliate are parties, (ii) any act (other than retirement) or omission to
act by the participant, including without limitation, the commission of any
crime (other than ordinary traffic violations), which may have a material and
adverse effect on the business of the Company or any Affiliate or on the
participant's ability to perform services for the Company or any Affiliate, or
(iii) any material misconduct or neglect of duties by the participant in
connection with the business or affairs of the Company or any Affiliate.
"Change of Control" is defined in Section 14.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means any Committee of the Board referred to in Section 2.
"Director" means a member of the Board.
"Disability" means disability as set forth in Section 22(e)(3) of the Code.
<PAGE>
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"Dividend Equivalent" means a right, granted under Section 9, to receive
cash, Stock, or other property equal in value to dividends paid with respect to
a specified number of shares of Stock or the excess of dividends paid over a
specified rate of return. Dividend Equivalents may be awarded on a free-standing
basis or in connection with another Award, and may be paid currently or on a
deferred basis.
"Effective Date" means the date on which the Plan is approved by the Board
as set forth in Section 16.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the related rules, regulations and interpretations.
"Fair Market Value" on any given date means the last reported sale price at
which Stock is traded on such date or, if no Stock is traded on such date, the
most recent date on which Stock was traded, as reflected on the New York Stock
Exchange or, if applicable, any other national stock exchange which is the
principal trading market for the Stock.
"Incentive Stock Option" means any Stock Option designated and qualified as
an "incentive stock option" as defined in Section 422 of the Code.
"Non-Employee Director" means a member of the Board who: (i) is not
currently an officer of the Company or any Affiliate; (ii) does not receive
compensation for services rendered to the Company or any Affiliate in any
capacity other than as a Director; (iii) does not possess an interest in any
transaction with the Company for which disclosure would be required under the
securities laws; or (iv) is not engaged in a business relationship with the
Company for which disclosure would be required under the securities laws.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
"Parent" means a "parent corporation" as defined in Section 424(e) of the
Code.
"Performance Share Award" means Awards granted pursuant to Section 7.
"Restricted Stock Award" means Awards granted pursuant to Section 6.
"Stock" means the Common Stock, $.01 par value per share, of the Company,
subject to adjustment pursuant to Section 3.
"Subsidiary" means any corporation (other than the Company) in an unbroken
chain of corporations, beginning with the Company if each of the corporations
(other than the last corporation in the unbroken chain) owns stock possessing
50% or more of the total combined voting power of all classes of stock in one of
the other corporations in the chain.
<PAGE>
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SECTION 2. Administration of Plan; Committee Authority to Select
Participants and Determine Awards.
(a) Committee. The Plan shall be administered by a committee of not less
than two Non-Employee Directors, as appointed by the Board from time to time
(the "Committee").
(b) Powers of Committee. The Committee shall have the power and authority
to grant Awards consistent with the terms of the Plan, including the power and
authority:
(i) to select the officers, employees and Directors of the Company and
Affiliates to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the extent, if any,
of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock,
Performance Shares and Dividend Equivalents, or any combination of the
foregoing, granted to any officer, employee or Director;
(iii) to determine the number of shares to be covered by any Award
granted to an officer, employee or Director;
(iv) to determine and modify the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any Award
granted to an officer, employee or Director, which terms and conditions may
differ among individual Awards and participants, and to approve the form of
written instruments evidencing the Awards;
(v) to accelerate the exercisability or vesting of all or any portion
of any Award granted to a participant;
(vi) subject to the provisions of Section 5(ii), to extend the period
in which Stock Options granted may be exercised;
(vii) to determine whether, to what extent and under what
circumstances Stock and other amounts payable with respect to an Award
granted to a participant shall be deferred either automatically or at the
election of the participant and whether and to what extent the Company
shall pay or credit amounts equal to interest (at rates determined by the
Committee) or dividends or deemed dividends on such deferrals; and
(viii) to adopt, alter and repeat such rules, guidelines and practices
for administration of the Plan and for its own acts and proceedings as it
shall deem advisable; to interpret the terms and provisions of the Plan and
any Award (including related written instruments) granted to a participant;
and to decide all disputes arising in connection with and make all
determinations it deems advisable for the administration of the Plan.
All decisions and interpretations of the Committee shall be binding on all
persons, including the Company and Plan participants.
<PAGE>
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SECTION 3. Shares Issuable Under the Plan; Mergers; Substitution.
(a) Shares Issuable. The maximum number of shares of Stock reserved and
available for issuance under the Plan shall be 6,500,000. For purposes of this
limitation, the shares of Stock underlying any Awards which are forfeited,
canceled, reacquired by the Company, satisfied without the issuance of Stock or
otherwise terminated (other than by exercise) shall be added back to the shares
of Stock available for issuance under the Plan so long as the participants to
whom such Awards had been previously granted received no benefits of ownership
of the underlying shares of Stock to which the Award related. Shares issued
under the Plan may be authorized but unissued shares or shares reacquired by the
Company.
(b) Stock Dividends, Mergers, etc. In the event of any recapitalization,
reclassification, split-up or consolidation of shares of Stock, separation
(including a spin-off), dividend on shares of Stock payable in capital stock, or
other similar change in capitalization of the Company or a merger or
consolidation of the Company or sale by the Company of all or a portion of its
assets or other similar event, the Committee shall make such appropriate
adjustments in the exercise prices of Awards, including Awards then outstanding,
in the number and kind of securities, cash or other property which may be issued
pursuant to Awards under the Plan, including Awards then outstanding, and in the
number of shares of Stock with respect to which Awards may be granted (in the
aggregate and to individual participants) as the Committee deems equitable with
a view toward maintaining the proportionate interest of the participant and
preserving the value of the Awards.
(c) Substitute Awards. The Committee may grant Awards under the Plan in
substitution for stock and stock based awards held by employees of another
corporation who concurrently become employees of the Company or an Affiliate as
the result of a merger or consolidation of the employing corporation with the
Company or an Affiliate or the acquisition by the Company or an Affiliate of
property or stock of the employing corporation. The Committee may direct that
the substitute awards be granted on such terms and conditions as the Committee
considers appropriate in the circumstances.
SECTION 4. Eligibility.
Participants in the Plan will be Directors and such full or part-time
officers and other employees of the Company and its Affiliates who are
responsible for or contribute to the management, growth or profitability of the
Company and its Affiliates and who are selected from time to time by the
Committee, in its sole discretion.
SECTION 5. Stock Options.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock Options,
subject to required stockholder approval, or Non-Qualified Stock Options. To the
extent that any option does not qualify as an Incentive Stock Option, it shall
constitute a Non-Qualified Stock Option.
No Incentive Stock Option may be granted under the Plan after the tenth
anniversary of the Effective Date.
<PAGE>
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The Committee in its discretion may grant Stock Options to employees of the
Company or any Affiliate. Stock Options granted to Directors and employees
pursuant to this Section 5 shall be subject to the following terms and
conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(i) Exercise Price. The per share exercise price of a Stock Option
granted pursuant to this Section 5 shall be determined by the Committee at
the time of grant. The per share exercise price of an Incentive Stock
Option shall not be less than 100% of Fair Market Value on the date of
grant. If an employee owns or is deemed to own (by reason of the
attribution rules applicable under Section 424(d) of the Code) more than
10% of the combined voting power of all classes of stock of the Company or
any Subsidiary or Parent corporation and an Incentive Stock Option is
granted to such employee, the option price shall be not less than 110% of
Fair Market Value on the grant date.
(ii) Option Term. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten
years after the date the option is granted. If an employee owns or is
deemed to own (by reason of the attribution rules of Section 424(d) of the
Code) more than 10% of the combined voting power of all classes of stock of
the Company or any Subsidiary or Parent corporation and an Incentive Stock
Option is granted to such employee, the term of such option shall be no
more than five years from the date of grant.
(iii) Exercisability; Rights of a Shareholder. Stock Options shall
become exercisable at such time or times, whether or not in installments,
as shall be determined by the Committee at or after the grant date. The
Committee may at any time accelerate the exercisability of all or any
portion of any Stock Option. An optionee shall have the rights of a
shareholder only as to shares acquired upon the exercise of a Stock Option
and not as to unexercised Stock Options.
(iv) Method of Exercise. Stock Options may be exercised in whole or in
part, by giving written notice of exercise to the Company, specifying the
number of shares to be purchased. Payment of the purchase price may be made
by one or more of the following methods:
(A) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(B) In the form of shares of Stock that are not then subject to
restrictions under any Company plan, if permitted by the Committee in
its discretion. Such surrendered shares shall be valued at Fair Market
Value on the exercise date; or
(C) By the optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable
to the Company to pay the purchase price; provided that in the event
the optionee chooses to pay the purchase price as so provided, the
optionee and the broker shall comply with such procedures and enter
into such agreements of indemnity and other agreements as the
Committee shall prescribe as a condition of such payment procedure.
Payment instruments will be received subject to collection.
The delivery of certificates representing shares of Stock to be purchased
pursuant to the exercise of the Stock Option will be contingent upon receipt
from the Optionee (or a purchaser acting in his stead in accordance with
<PAGE>
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the provisions of the Stock Option) by the Company of the full purchase price
for such shares and the fulfillment of any other requirements contained in the
Stock Option or applicable provisions of laws.
(v) Non-transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of
descent and distribution, except that a Non-Qualified Stock Option may be
transferred by gifting for the benefit of a participant's descendants for
estate planning purposes or pursuant to a certified domestic relations
order, and all Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee.
(vi) Termination by Death. If any optionee's service with the Company
and its Affiliates terminates by reason of death, the Stock Option may
thereafter be exercised, to the extent exercisable at the date of death, by
the legal representative or legatee of the optionee, for a period of six
months (or such longer period as the Committee shall specify at any time)
from the date of death, or until the expiration of the stated term of the
Option, if earlier.
(vii) Termination by Reason of Disability.
(A) Any Stock Option held by an optionee whose service with the
Company and its Affiliates has terminated by reason of Disability may
thereafter be exercised, to the extent it was exercisable at the time
of such termination, for a period of twelve months (or such longer
period as the Committee shall specify at any time) from the date of
such termination of service, or until the expiration of the stated
term of the Option, if earlier.
(B) The Committee shall have sole authority and discretion to
determine whether a participant's service has been terminated by
reason of Disability.
(C) Except as otherwise provided by the Committee at the time of
grant or otherwise, the death of an optionee during a period provided
in this Section 5(vii) for the exercise of a Non-Qualified Stock
Option, shall extend such period for six months from the date of
death, subject to termination on the expiration of the stated term of
the Option, if earlier.
(viii) Termination for Cause. If any optionee's service with the
Company and its Affiliates has been terminated for Cause, any Stock Option
held by such optionee shall immediately terminate and be of no further
force and effect; provided, however, that the Committee may, in its sole
discretion, provide that such Stock Option can be exercised for a period of
up to 30 days from the date of termination of service or until the
expiration of the stated term of the Option, if earlier.
(ix) Other Termination. Unless otherwise determined by the Committee,
if an optionee's service with the Company and its Affiliates terminates for
any reason other than death, Disability, or for Cause, any Stock Option
held by such optionee may thereafter be exercised, to the extent it was
exercisable on the date of termination of service, for three months (or
such longer period as the Committee shall specify at any time) from the
date of termination of service or until the expiration of the stated term
of the Option, if earlier.
(x) Annual Limit on Incentive Stock Options. To the extent required
for "incentive stock option" treatment under Section 422 of the Code, the
aggregate Fair Market Value (determined as of the time of grant) of the
Stock with respect to which Incentive Stock Options granted under this
<PAGE>
-7-
Plan and any other plan of the Company or its Subsidiaries become
exercisable for the first time by an optionee during any calendar year
shall not exceed $100,000.
(xi) Form of Settlement. Shares of Stock issued upon exercise of a
Stock Option shall be free of all restrictions under the Plan, except as
otherwise provided in this Plan.
SECTION 6. Restricted Stock Awards.
(a) Nature of Restricted Stock Award. The Committee may grant Restricted
Stock Awards to Directors and employees of the Company or any Affiliate. A
Restricted Stock Award is an Award entitling the recipient to acquire, at no
cost or for a purchase price determined by the Committee, shares of stock
subject to such restrictions and conditions as the Committee may determine at
the time of grant ("Restricted Stock"). Conditions may be based on continuing
service and/or achievement of pre-established performance goals and objectives.
In addition, a Restricted Stock Award may be granted to a Director or employee
by the Committee in lieu of any compensation due to such Director or employee.
(b) Acceptance of Award. A participant who is granted a Restricted Stock
Award shall have no rights with respect to such Award unless the participant
shall have accepted the Award within 60 days (or such shorter date as the
Committee may specify) following the award date by making payment to the
Company, if required, by certified or bank check or other instrument or form of
payment acceptable to the Committee in an amount equal to the specified purchase
price, if any, of the shares covered by the Award and by executing and
delivering to the Company a written instrument that sets forth the terms and
conditions of the Restricted Stock in such form as the Committee shall
determine.
(c) Right as a Shareholder. Upon complying with Section 6(b) above, a
participant shall have all the rights of a shareholder with respect to the
Restricted Stock including voting and dividend rights, subject to
transferability restrictions and Company repurchase or forfeiture rights
described in this Section 6 and subject to such other conditions contained in
the written instrument evidencing the Restricted Stock Award. Unless the
Committee shall otherwise determine, certificates evidencing shares of
Restricted Stock shall remain in the possession of the Company until such shares
are vested as provided in Section 6(e) below.
(d) Restrictions. Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein.
(e) Vesting of Restricted Stock. The Committee at the time of grant shall
specify the date or dates and/or the attainment of pre-established performance
goals, objectives and other conditions on which the non-transferability of the
Restricted Stock and the Company's right of repurchase or forfeiture shall
lapse. Subsequent to such date or dates and/or the attainment of such
pre-established performance goals, objectives and other conditions, the shares
on which all restrictions have lapsed shall no longer be Restricted Stock and
shall be deemed "vested."
(f) Waiver, Deferral and Reinvestment of Dividends. The written instrument
evidencing the Restricted Stock Award may require or permit the immediate
payment, waiver, deferral or investment of dividends paid on the Restricted
Stock.
<PAGE>
-8-
SECTION 7. Performance Share Awards.
(a) Nature of Performance Shares. A Performance Share Award is an award
entitling the recipient to acquire shares of Stock upon the attainment of
specified performance goals. The Committee may make Performance Share Awards
independent of or in connection with the granting of any other Award under the
Plan. Performance Share Awards may be granted under the Plan to Directors and
employees of the Company or any Affiliate, including those who qualify for
awards under other performance plans of the Company. The Committee in its sole
discretion shall determine whether and to whom Performance Share Awards shall be
made, the performance goals applicable under each such Award, the periods during
which performance is to be measured, and all other limitations and conditions
applicable to the awarded Performance Shares; provided, however, that the
Committee may rely on the performance goals and other standards applicable to
other performance based plans of the Company in setting the standards for
Performance Share Awards under the Plan.
(b) Restrictions on Transfer. Performance Share Awards and all rights with
respect to such Awards may not be sold, assigned, transferred, pledged or
otherwise encumbered.
(c) Rights as a Shareholder. A participant receiving a Performance Share
Award shall have the rights of a shareholder only as to shares actually received
by the participant under the Plan and not with respect to shares subject to the
Award but not actually received by the participant. A participant shall be
entitled to receive a stock certificate evidencing the acquisition of shares of
Stock under a Performance Share Award only upon satisfaction of all conditions
specified in the written instrument evidencing the Performance Share Award (or
in a performance plan adopted by the Committee).
(d) Termination. Except as may otherwise be provided by the Committee at
any time prior to termination of service, a participant's rights in all
Performance Share Awards shall automatically terminate upon the participant's
termination of service with the Company and its Affiliates for any reason
(including, without limitation, death, Disability and for Cause).
(e) Acceleration, Waiver, Etc. At any time prior to the participant's
termination of service with the Company and its Affiliates, the Committee may in
its sole discretion accelerate, waive or, subject to Section 12, amend any or
all of the goals, restrictions or conditions imposed under any Performance Share
Award; provided, however, that in no event shall any provision of the Plan be
construed as granting to the Committee any discretion to increase the amount of
compensation payable under any Performance Share Award to the extent such an
increase would cause the amounts payable pursuant to the Performance Share Award
to be nondeductible in whole or in part pursuant to Section 162(m) of the Code
and the regulations thereunder, and the Committee shall have no such discretion
notwithstanding any provision of the Plan to the contrary.
SECTION 8. Stock Appreciation Rights.
(a) Notice of Stock Appreciation Rights. A Stock Appreciation Right ("SAR")
is a right entitling the participant to receive cash or Stock having a fair
market value equal to the appreciation in the Fair Market Value of a stated
number of shares from the date of grant, or in the case of rights granted in
tandem with or by reference to an Option granted prior to the grant of such
rights, from the date of grant of the related Option to the date of exercise.
SARs may be granted to Directors and employees of the Company or any Affiliate.
<PAGE>
-9-
(b) Terms of Awards. SARs may be granted in tandem with or with reference
to a related Option, in which event the participant may elect to exercise either
the Option or the SAR, but not both, as to the same share subject to the Option
and the SAR, or the SAR may be granted independently. In the event of an Award
with a related Option, the SAR shall be subject to the terms and conditions of
the related Option. In the event of an independent Award, the SAR shall be
subject to the terms and conditions determined by the Committee.
(c) Restrictions on Transfer. SARs shall not be transferred, assigned or
encumbered, except that SARs may be exercised by the executor, administrator or
personnel representative of the deceased participant within six months of the
death of the participant (or such longer period as the Committee shall specify
at any time) and transferred pursuant to a certified domestic relations order.
(d) Payment Upon Exercise. Upon exercise of an SAR, the participant shall
be paid the excess of the then Fair Market Value of the number of shares to
which the SAR relates over the Fair Market Value of such number of shares at the
date of grant of the SAR, or of the related Option, as the case may be. Such
excess shall be paid in cash or in Stock having a Fair Market Value equal to
such excess or in such combination thereof as the Committee shall determine.
SECTION 9. Dividend Equivalents.
The Committee is authorized to grant Dividend Equivalents to Directors and
employees of the Company or any Affiliate. The Committee may provide, at the
date of grant or thereafter, that Dividend Equivalents shall be paid or
distributed when accrued or shall be deemed to have been reinvested in
additional Shares, or other investment vehicles as the Committee may specify,
provided that Dividend Equivalents (other than freestanding Dividend
Equivalents) shall be subject to all conditions and restrictions of the
underlying Awards to which they relate.
SECTION 10. Tax Withholding.
(a) Payment by Participant. Each participant shall, no later than the date
as of which the value of an Award or of any Stock or other amounts received
thereunder first becomes includible in the gross income of the participant for
Federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any Federal, state, or local
taxes of any kind required by law to be withheld with respect to such income.
The Company and its Affiliates shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant.
(b) Payment in Shares. A participant may elect to have such tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Company to
withhold from shares of Stock to be issued pursuant to any Award a number of
shares with an aggregate Fair Market Value (as of the date the withholding is
effected) that would satisfy the withholding amount due, or (ii) transferring to
the Company shares of Stock owned by the participant with an aggregate Fair
Market Value (as of the date the withholding is effected) that would satisfy the
withholding amount due with respect to any participant who is subject to Section
16 of the Act, the following additional restrictions shall apply:
(A) the election to satisfy tax withholding obligations relating to an
Award in the manner permitted by this Section 10(b) and the actual tax
withholding shall be made during the period beginning on the third business
day following the date of release of quarterly or annual summary statements
of revenues and earnings of the Company and ending on the twelfth business
day following such date.
<PAGE>
-10-
Alternatively, such election may be made at least six months prior to the
date as of which the receipt of such an Award first becomes a taxable event
for Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or disapproval of
the Committee; and
(D) the Stock withheld to satisfy tax withholding, if granted at the
discretion of the Committee, must pertain to an Award which has been held
by the participant for at least six months from the date of grant of the
Award.
SECTION 11. Transfer, Leave of Absence, Etc.
For purposes of the Plan, the following events shall not be deemed a
termination of service;
(a) a transfer to the employment of the Company from an Affiliate or
from the Company to an Affiliate, or from one Affiliate to another; and
(b) an approved leave of absence for military service or sickness, or
for any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the
Committee otherwise so provides in writing.
SECTION 12. Amendments and Termination.
The Board may at any time amend or discontinue the Plan and the Committee
may at any time amend or cancel any outstanding Award (or provide substitute
Awards at the same or reduced exercise or purchase price or with no exercise or
purchase price, but such price, if any, must satisfy the requirements which
would apply to the substitute or amended Award if it were then initially granted
under this Plan) for the purpose of satisfying changes in law or for any other
lawful purpose, but no such action shall adversely affect rights under any
outstanding Award without the holder's consent.
SECTION 13. Status of Plan.
With respect to the portion of any Award which has not been exercised and
any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
unsecured creditor of the Company unless the Committee shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet the
Company's obligations to deliver Stock or make payments with respect to Awards
hereunder, provided that the existence of such trusts or other arrangements is
consistent with the provision of the foregoing sentence.
SECTION 14. Change of Control Provisions.
Upon the occurrence of a Change of Control as defined in this Section 14:
(a) Each Stock Option shall automatically become fully exercisable
unless the Committee shall otherwise expressly provide at the time of
grant.
<PAGE>
-11-
(b) Restrictions and conditions on Awards of Restricted Stock,
Performance Shares and Dividend Equivalents shall automatically be deemed
waived, and the recipients of such Awards shall become entitled to receipt
of the maximum amount of Stock subject to such Awards unless the Committee
shall otherwise expressly provide at the time of grant.
(c) Unless otherwise expressly provided at the time of grant,
participants who hold Options shall have the right, in lieu of exercising
the Option, to elect to surrender all or part of such Option to the Company
and to receive cash in an amount equal to the excess of (i) the higher of
(x) the Fair Market Value of a share of Stock on the date such right is
exercised and (y) the highest price paid for Stock or, in the case of
securities convertible into Stock or carrying a right to acquire Stock, the
highest effective price (based on the prices paid for such securities) at
which such securities are convertible into Stock or at which Stock may be
acquired, by any person or group whose acquisition of voting securities has
resulted in a Change of Control of the Company over (ii) the exercise price
per share under the Option, multiplied by the number of shares of Stock
with respect to which such right is exercised.
(d) "Change of Control" shall mean the occurrence of any one of the
following events:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Act (other than the Company, any of its Subsidiaries, any
trustee, fiduciary or other person or entity holding securities under
any employee benefit plan of the Company or any of its Subsidiaries),
together with all "affiliates" and "associates" (as such terms are
defined in Rule 12b-2 under the Act) of such person, shall become the
"beneficial owner" (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of the Company
representing 40% or more of either (A) the combined voting power of
the Company's then outstanding securities having the right to vote in
an election of the Company's Board of Directors ("Voting Securities")
or (B) the then outstanding shares of Common Stock of the Company (in
either such case other than as a result of acquisition of securities
directly from the Company); or
(ii) persons who, as of the date of the closing of the Company's
initial public offering, constitute the Company's Board of Directors
(the "Incumbent Directors") cease for any reason, including without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company subsequent
to the Closing of the Company's initial public offering whose election
or nomination for election was approved by a vote of at least a
majority of the Incumbent Directors shall, for purposes of this Plan,
be considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any Subsidiary where the
stockholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate 50%
or more of the voting stock of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any), (B) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or sub-
<PAGE>
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stantially all of the assets of the Company or (C) any plan or
proposal for the liquidation or dissolution of the Company;
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to
have occurred for purposes of the foregoing clause (i) solely as the result of
an acquisition of securities by the Company which, by reducing the number of
shares of Common Stock or other Voting Securities outstanding, increases (x) the
proportionate number of shares of Common Stock beneficially owned by any person
to 40% or more of the shares of Common Stock then outstanding or (y) the
proportionate voting power represented by the Voting Securities beneficially
owned by any person to 40% or more of the combined voting power of all then
outstanding Voting Securities; provided, however, that if any person referred to
in clause (x) or (y) of this sentence shall thereafter become the beneficial
owner of any additional shares of Common Stock or other Voting Securities (other
than pursuant to a stock split, stock dividend, or similar transaction), then a
"Change of Control" shall be deemed to have occurred for purposes of the
foregoing clause (i).
SECTION 15. General Provisions.
(a) No Distribution; Compliance with Legal Requirements. The Committee may
require each person acquiring shares pursuant to an Award to represent to and
agree with the Company in writing that such person is acquiring the shares
without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities laws and other legal and stock exchange requirements have
been satisfied. The Committee may require the placing of such stop-orders and
restrictive legends on certificates for Stock and Awards as it deems
appropriate.
(b) Delivery of Stock Certificates. Delivery of stock certificates to
participants under this Plan shall be deemed effected for all purposes when the
Company or a stock transfer agent of the Company shall have delivered such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) Other Compensation Arrangements; No Employment Rights. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, subject to stockholder approval if
such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases. The adoption of the Plan and
the grant of Awards do not confer upon any employee any right to continued
employment with the Company or any Subsidiary.
SECTION 16. Effective Date of Plan.
The Plan shall become effective upon approval by the Board, or any
committee thereof with such authority. The ability to grant Incentive Stock
Option Awards requires approval by the stockholders, and no such Awards may be
issued hereunder prior to such approval.
SECTION 17. Governing Law.
THIS PLAN SHALL BE GOVERNED BY NEW YORK LAW EXCEPT TO THE EXTENT SUCH LAW
IS PREEMPTED BY FEDERAL LAW.
Exhibit 4.2
FIRST
INDUSTRIAL
Deferred Income Plan
<PAGE>
FIRST INDUSTRIAL REALTY TRUST, INC.
DEFERRED INCOME PLAN
1. PURPOSE
The purpose of the First Industrial Realty Trust, Inc. Deferred Income Plan
(the Plan") is to enable key officers and employees of First Industrial Realty
Trust, Inc. and any affiliates (the "Company"), to receive deferred income on
account of service with the Company. The Plan is intended as a means of
maximizing the effectiveness and flexibility of the compensation arrangements to
employees of the Company and affiliates, and as an aid in attracting and
retaining individuals of outstanding abilities and specialized skills for
service.
2. EFFECTIVE DATE
Upon approval of this Plan by the Compensation Committee of the Board of
Directors of the Company (the "Committee"), the Plan shall be effective as of
January 1, 1996 (the "Effective Date").
3. PLAN ADMINISTRATION
The Plan will be administered by the Committee and/or officer(s) duly
authorized by the Committee. Reference herein to the Committee shall include
reference to any committee and/or officer so authorized by -the Committee. Full
power to implement, interpret and construe the provisions of the Plan shall,
except as otherwise provided in the Plan, be vested in the Committee, which may
adopt, alter, amend or revoke rules for such purpose. The expense of
administering the Plan shall be borne by the Company and shall not be charged
against benefits payable hereunder.
4. ELIGIBILITY
Any key officer or employee of the Company designated by the Committee is
eligible to participate in the Plan. Any such officer or employee shall be a
"Participant" as of the date designated by the Committee, and his or her status
as a Participant shall continue until the earlier of termination of service or
the tenth anniversary of the Effective Date.
5. DEFERRED INCOME BENEFITS
The Committee may grant deferred income benefits to Participants. The
deferred income benefits shall be based upon units granted under the Plan by the
Committee. The deferred income benefit will be the crediting of an amount
equivalent to the dividend paid with respect to a share of Company common stock
for each unit granted. No deferred income benefit will be credited for any
calendar year in which dividends paid do not equal or exceed the base dividend
amount indicated in the grant. Deferred income benefit amounts credited will be
deemed to be reinvested in additional units at the then current price of Company
common stock, and such additional units shall also be eligible for crediting of
deferred income benefits.
6. RECORD AND CREDITING OF DEFERRED-INCOME-BENEFITS
(a) Deferred Income Benefits. The Company shall credit the amount of any
deferred income benefits to a memorandum account for the benefit of the
Participant (the "Deferred Income Benefit Account") no later than the last day
of the calendar quarter in which a dividend is paid.
(b) Value and Statement of Account. The Company shall provide each
Participant with a statement of the value of his or her Deferred Income Benefit
Account at least annually.
<PAGE>
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7. VESTING OF DEFERRED INCOME BENEFIT
Each deferred income benefit will vest pro rata over a three year period,
such period beginning on the date such benefit is credited. (As illustrated in
Exhibit A attached hereto). The Committee in its sole discretion may accelerate
the vesting of any grant hereunder.
8. TERMINATION FOR CAUSE
If any Participant's service with the Company is terminated for Cause (as
defined below), any deferred income benefit hereunder held by such Participant
shall immediately terminate and be of no further force and effect. "Cause" shall
mean and be limited to a vote of the Committee to the effect that the
Participant should be dismissed as a result of : (i) any material breach by the
Participant of any agreement to which the Participant and the Company are
parties; (ii) any act (other than retirement) or omission to act by the
Participant, including without limitation, the commission of any crime (other
than ordinary traffic violations), which may have a material and adverse effect
on the business of the Company or on the Participant's ability to perform
services for the Company; or (iii) any material misconduct or neglect of duties
by the Participant in connection with the business or affairs of the Company.
9. PAYMENT OF DEFERRED INCOME BENEFIT
(a) In General. No withdrawals or payment shall be made from the
Participant's Deferred Income Benefit Account except as provided in this Section
9.
(b) Payment Event. A Participant's deferred income benefit shall be paid no
later than January 31 following the calendar year in which such benefit vests
under Section 7.
(c) Death of Participant. In the event that a Participant shall die at any
time prior to complete distribution of amounts payable to him or her under the
provisions of the Plan, the unpaid vested balance of the Participant's Deferred
Income Account shall be paid in the January following such death, or as soon as
reasonably possible thereafter, to the Participant's beneficiary or
beneficiaries.
(d) Form of Payment. The Committee in its sole discretion may elect to pay
the value of a Participant's vested Deferred Income Benefit Account in cash or
Company common stock with the equivalent market value on the payment date.
10. DESIGNATION OF BENEFICIARY
Participants shall designate in writing, in accordance with such rules and
procedures as the Committee may prescribe, the beneficiary or beneficiaries who
are to receive the Participant's Deferred Income Benefit Account in the event of
the Participant's death.
11. UNSECURED OBLIGATIONS
The obligation of the Company to make payments under the Plan shall be a
general obligation of the Company, and such payments shall be made from general
assets and property of the Company. The Participant's relationship to the
Company under the Plan shall be only that of a general unsecured creditor and
neither this Plan nor any agreement entered into hereunder or action taken
pursuant hereto shall create or be construed to create a trust or fiduciary
relationship of any kind. The Company may establish an irrevocable grantor trust
for purposes of holding and investing the Deferred Income Benefit Account
balances, but such establishment shall not create any rights in or against any
amount so held.
<PAGE>
-3-
12. AMENDMENT AND TERMINATION
This Plan may be amended in whole or in part, suspended or terminated by
the Committee at any time, provided, however, that no amendment, suspension or
termination shall, without the consent of a Participant, adversely affect such
Participant's rights to his or her deferred income benefits. This Plan will
automatically terminate on the tenth anniversary of the Effective Date; any
deferred income benefits outstanding at such termination date will continue to
vest and he paid in accordance with the terms of the Plan.
13. EFFECT OF TRANSFER
In the event that all or substantially all of the assets of the Company
shall be transferred by way of a sale, merger, consolidation or other means, or
in the event of a change of control (as herein defined), the entire unpaid
balance of each Deferred Income Benefit Account shall be paid in a lump sum to
the Participant as of the effective date thereof.
For purposes of this Agreement, "change of control" shall mean, the
occurrence of any one of the following events:
(i) any "person", as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Act") (other
than the Company, any of its Subsidiaries, any trustee, fiduciary or
other person or entity holding securities under any employee benefit
plan of the Company or any of its Subsidiaries), together with all
"affiliates" and "associates" (as such terms are defined in Rule 12b-2
under the Act) of such person, shall become the "beneficial owner" (as
such term is defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing 40% or more of
either: (A) the combined voting power of the Company's then
outstanding securities having the right to vote in an election of the
Company's Board of Directors ("Voting Securities"); or (B) the then
outstanding shares of the Company common stock (in either such case
other than as a result of acquisition of securities directly from the
Company); or
(ii) persons who, as of the date of the closing of the Company's
initial public offering, constitute the Company's Board of Directors
(the "Incumbent Directors") cease for any reason, including without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction, to constitute at least a majority of the board,
provided that any person becoming a director of the Company subsequent
to the closing of the Company's initial public offering whose election
or nomination for election was approved by a vote of at least a
majority of the Incumbent Directors shall, for purposes of this Plan,
be considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve; (A) any
consolidation or merger of the Company or any Subsidiary where the
stockholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the aggregate 50%
or more of the voting stock of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any); (B) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all of
the assets of the Company; or (C) any plate or proposal for the
liquidation or dissolution of the Company;
Notwithstanding the foregoing, a "change of control" shall not be deemed to
have occurred for purposes of the foregoing clause (i) solely as the result of
an acquisition of securities by the Company which, by
<PAGE>
-4-
reducing the number of shares of Company common stock or other Voting Securities
outstanding, increases (x) the proportionate number of shares of Company common
stock beneficially owned by any person to 40% or more of the shares of Company
common stock then outstanding or (y) the proportionate voting power represented
by the Voting Securities beneficially owned by any person to 40% or more of the
combined voting power of all then outstanding Voting Securities; provided,
however, that if any person referred to in clause (x) or (y) of this sentence
shall thereafter become the beneficial owner of any additional shares of Company
common stock or other Voting Securities (other than pursuant to a stock split,
stock dividend, or similar transaction), then a "change of control" shall be
deemed to have occurred for purposes of the foregoing clause (i).
14. NON-ASSIGNABILITY
No right to receive payments under the provisions of this Plan shall be
transferable or assignable by a Participant, except by will or by the laws of
descent and distribution.
15. BINDING PRQVISIONS
All of the provisions of this Plan shall be binding upon all persons who
shall be entitled to any benefits hereunder and their heirs and personal
representatives.
16. CLAIMS PROCEDURE
(a) Claim. Any person claiming a benefit, requesting an interpretation or
ruling under the Plan, or requesting information under the Plan shall present
the request in writing to the Committee which shall respond in writing as soon
as practicable.
(b) Denial of Claim. If the claim or request is denied, the written notice
of denial should state:
(i) The reason for denial, with specific reference to the Plan
provisions on which the denial is based.
(ii) A description of any additional material or information required
and an explanation of why it is necessary.
(iii) An explanation of the Plan's claims review procedure.
(c) Review of Claim. Any person whose claim or request is denied or who has
not received a response within thirty (30) days may request a review by notice
given in writing to the Committee. The claim or request shall be reviewed by the
Committee who may, but shall not be required to, grant the claimant a hearing.
On review, the claimant may have representation, examine pertinent documents,
and submit issues and comments in writing.
(d) Final Decision. The decision on review shall normally be made within
sixty (60) days. If an extension of time is required for a hearing or other
special circumstances, the claimant shall be notified and the time limit shall
be one hundred and twenty (120) days. The decision on review shall be in writing
and shall state the reason and the relevant Plan provisions. All decisions on
review shall be final and bind all parties concerned.
<PAGE>
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First Industrial Realty Trust, Inc.
Deferred Income Plan
Exhibit A
Assumptions:
Annual Dividends: = $2.00/share
Options granted to optionholder: = 10,000 in year 1
Stock Prices: = $22/share in year 1
$24/share in year 2
$27/share in years 3-5
$30/share in years 6 and 7
$32/share in years 8-10
<TABLE>
<CAPTION>
Results:
Benefit Benefit Paid
Units Accrual Current Cumulative
----- ------- ------- ----------
<S> <C> <C> <C> <C>
Year 1 Option Issuance 10,000 $ -
First Year Dividend 941 20,692
First Year Vested Benefit Payment (314) (6,897)
---- ------
10,627 13,795 $ 6,897 $ 6,897
Year 2 Second Year Dividend 914 21,928
Second Year Vested Benefit Payment (592) (14,207)
---- -------
10,949 21,516 14,207 21,104
Year 3 Third Year Dividend 834 22,513
Third Year Vested Benefit Payment (804) (21,711)
---- -------
10,978 22,318 21,711 42,815
Year 4 Fourth Year Dividend 836 22,574
Fourth Year Vested Benefit Payment (827) (22,338)
---- -------
10,987 22,554 22,338 65,153
Year 5 Fifth Year Dividend 837 22,592
Fifth Year Vested Benefit Payment (836) (22,560)
---- -------
10,988 22,586 22,560 87,713
Year 6 Sixth Year Dividend 751 22,532
Sixth Year Vested Benefit Payment (752) (22,566)
---- -------
10,987 22,552 22,566 110,280
Year 7 Seventh Year Dividend 751 22,530
Seventh Year Vested Benefit Payment (752) (22,552)
---- -------
10,987 22,531 22,552 132,831
Year 8 Eighth Year Dividend 703 22,493
Eighth Year Vested Benefit Payment (704) (22,519)
---- -------
10,986 22,506 22,519 155,350
Year 9 Ninth Year Dividend 703 22,492
Ninth Year Vested Benefit Payment (703) (22,505)
---- -------
10,985 22,492 22,505 177,855
Year 10 Tenth Year Dividend 703 22,491
Tenth Year Vested Benefit Payment (703) (22,492)
---- -------
10,985 22,491 22,492 200,347
Year 11 Eleventh Year Vested Benefit Payment (14,994)
-- -------
7,497 14,994 215,341
Year 12 Twelfth Year Vested Benefit Payment (7,497)
-- ------
0 $ 7,497 $222,838
======
</TABLE>
Exhibit 5.1
[LETTERHEAD OF CAHILL GORDON & REINDEL]
January 30, 1998
(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 5,500,000 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 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 5,000,000 shares of Common Stock, when issued and
paid for in accordance with the terms of the
<PAGE>
-2-
Company's 1997 Stock Incentive Plan, and the 500,000 shares of Common Stock,
when issued and paid for in accordance with the terms of the Company's Deferred
Income Plan, 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 McGuire Woods Battle & Boothe, L.L.P., 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
<PAGE>
[LETTERHEAD OF McGUIRE WOODS BATTLE & BOOTHE, LLP]
January 30, 1998
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 5,500,000 shares of common stock, par value $.01 per share
(the "Company's Common Stock"), of First Industrial Realty Trust, Inc., a
Maryland corporation (the "Company"). The Company Common Stock is being
registered in two allotments pursuant to a registration statement on Form S-8
filed with the Securities and Exchange Commission (the "Registration
Statement"). The first allotment of the Company's Common Stock increases by
5,000,000 shares (the "Additional SI Plan stock") the number of shares that may
be issued under the Company's 1997 Stock Incentive Plan. The second allotment of
the Company's Common Stock provides for 500,000 shares that may be issued under
the Company's Deferred Income Plan (the "DI Plan Stock").
In connection with rendering this opinion, we have examined originals or
copies certified or otherwise identified to our satisfaction, of the Articles of
Amendment and Restatement of the Company, dated June 13, 1994, and the Articles
of Amendment of the Company, dated June 21, 1994 and May 31, 1996; the Amended
and Restated Bylaws of the Company, as amended to date; the Company's 1997 Stock
Incentive Plan (the "SI Plan"); the Company's Deferred Income Plan (the "DI
Plan"); resolutions and meeting minutes of the Board of Directors and the
Compensation Committee of the Board of Directors of the Company, including
minutes of a meeting of the Board of Directors and the Compensation Committee
dated June 23, 1994, minutes of a meeting of the Board of Directors dated March
7, 1996, minutes of a meeting of the Compensation Committee dated March 7, 1996,
minutes of a meeting of the Compensation Committee dated September 29, 1997, and
minutes of a meeting of the Board of Directors dated December 4, 1997;
(collectively, the "Authorizing Resolutions"); the "Registration Statement; a
Certificate of Status for the Company issued by the State Department of
Assessments and Taxation of Maryland dated January 7, 1998; a Certificate of
Michael J. Havala, Secretary and Chief Financial Officer of the Company, dated
January 15, 1998; and such other certificates, receipts, representations,
records and documents relating to the Company and the issuance and sale of the
Company Common Stock covered by the Registration Statement 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, we have relied upon representations of officers of the Company.
We are attorneys admitted to practice in the State of Maryland. We express
no opinion concerning the laws of any jurisdictions other than the laws of the
United States of America and the State of Maryland.
<PAGE>
-2-
Based upon the foregoing, we are of the opinion that the Additional SI Plan
Stock, when issued and paid for in accordance with the terms of the SI Plan and
the Authorizing Resolutions, will be duly authorized, validly issued, fully paid
and nonassessable shares of the Company's Common Stock.
Based upon the foregoing, we also are of the opinion that the DI Plan
Stock, when issued and paid for in accordance with the terms of the DI Plan and
the Authorizing Resolutions, will be duly authorized, validly issued, fully paid
and nonassessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
This opinion may be relied upon by Messrs. 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,
McGUIRE WOODS BATTLE & BOOTHE, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of First Industrial Realty Trust, Inc. on Form S-8 of our report dated February
12, 1997, on our audits of the consolidated financial statements and the
financial statement schedule of First Industrial Realty Trust, Inc. (the
"Company") as of December 31, 1996 and 1995, and for the years ended December
31, 1996 and 1995 and for the six months ended December 31, 1994, and the
combined financial statements of the Contributing Businesses for the six months
ended June 30, 1994, which is included in the 1996 Annual Report on Form 10-K,
and our report dated February 11, 1997 on our audit of the combined historical
statement of revenues and certain expenses of the Acquisition Properties for the
year ended December 31, 1996 which is included in the Company's Current Report
on Form 8-K filed February 12, 1997, and our report dated March 26, 1997 on our
audit of the combined historical statement of revenues and certain expenses of
the Lazarus Burman Properties for the year ended December 31, 1996 which is
included in the Company's Current Report on Form 8-K filed February 12, 1997 as
amended by Form 8-K/A No. 1 filed April 10, 1997, and our report dated July 30,
1997 on our audit of the combined historical statement of revenues and certain
expenses of the Punia Acquisition Properties for the year ended December 31,
1996 which is included in the Company's Current Report on Form 8-K filed July
15, 1997 as amended by Form 8-K/A No. 1 filed September 4, 1997, and our report
dated October 13, 1997 on our audit of the combined historical statement of
revenues and certain expenses of the 1997 Acquisition I Properties for the year
ended December 31, 1996 which is included in the Company's Current Report on
Form 8-K filed July 15, 1997 as amended by Form 8-K/A No. 2 filed October 16,
1997, and our reports dated October 16, 1997, October 20, 1997 and October 27,
1997 on our audit of each of the combined historical statement of revenues and
certain expenses of the Sealy Acquisition Properties, the 1997 Acquisition III
Properties, and the Pacifica Acquisition Properties, respectively, for the year
ended December 31, 1996 which are included in the Company's Current Report on
Form 8-K filed November 14, 1997, and our reports dated December 30, 1997,
January 9, 1998 and January 9, 1998 on our audit of each of the combined
historical statement of revenues and certain expenses of the 1997 Acquisition V
Properties, the 1997 Acquisition VI Properties, and the 1997 Acquisition VII
Properties, respectively, for the year ended December 31, 1996 which are
included in the Company's Current Report on Form 8-K filed December 23, 1997 as
amended by Form 8-K/A No. 1 filed January 22, 1998.
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
January 29, 1998
