sv3asr
As filed
with the Securities and Exchange Commission on August 8, 2008
Registration No. 333-[ ]
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRST INDUSTRIAL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland
(State or other jurisdiction of incorporation or organization)
36-3935116
(I.R.S. Employer Identification Number)
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(312) 344-4300
(Address, including zip code, and telephone number, including area code,
of registrants principal executive offices)
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Michael W. Brennan
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Copies to: |
President and Chief Executive Officer
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Howard A. Nagelberg |
First Industrial Realty Trust, Inc.
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Edwin S. del Hierro |
311 S. Wacker Drive, Suite 4000
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William E. Turner II |
Chicago, Illinois, 60606
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Barack Ferrazzano Kirschbaum & Nagelberg LLP |
(312) 344-4300
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200 W. Madison St., Suite 3900 |
(Name of agent for service)
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Chicago, Illinois, 60606 |
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(312) 984-3100 |
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Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Title of Each Class of |
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Maximum |
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Aggregate |
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Amount of |
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Securities to be |
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Amount to be |
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Aggregate Offering |
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Offering |
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Registration |
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Registered |
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Registered |
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Price Per Share |
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Price |
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Fee |
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Common Stock (par
value $.01 per share)
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5,000,000 |
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$23.52(1)
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$117,600,000(1)
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$4,621.68(1) |
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(1) |
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This fee was determined based on a proposed maximum offering price for these shares of
$23.52 per share, which was estimated solely for the purpose of computing the amount of the registration
fee in accordance with Rule 457(c) under the Securities Act based on the average of the high and
low sales price per share of the registrants common stock on
August 5, 2008, as reported on the
New York Stock Exchange. |
PROSPECTUS
FIRST INDUSTRIAL REALTY TRUST, INC.
DIVIDEND REINVESTMENT AND
DIRECT STOCK PURCHASE PLAN
5,000,000 Shares
Common Stock
This prospectus relates to 5,000,000 shares of our common stock available for issuance under
our Dividend Reinvestment and Direct Stock Purchase Plan, which we
call the Plan. With this prospectus, we are offering you the
opportunity to participate in the Plan. The Plan offers a
simple and convenient way for our existing common stockholders to purchase additional shares and
for new investors to make an initial investment.
Some of the significant features of the Plan are as follows:
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If you are an existing stockholder, you may purchase additional shares by
automatically reinvesting all or part of your cash dividends. Also, you may purchase
additional shares by making optional cash purchases of $50 to $10,000 in any calendar
month. Optional cash purchases in excess of this maximum may only be made with our
prior written consent. |
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If you are a new investor, you may make an initial cash
purchase of $200 to $10,000.
Initial investments in excess of this maximum may only be made with our prior written
consent. |
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Common stock purchased directly from us under the Plan may be priced at a discount
from market prices at the time of the investment. |
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You are not required to pay brokerage commissions or other transaction expenses when
you acquire shares through the Plan. |
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Neither we nor the Plans administrator charges an enrollment fee for your initial
participation. |
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Shares acquired through the Plan will be maintained in book-entry form at no cost to
you. |
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At our direction, the Plans administrator will purchase shares of our common stock
for the accounts of Plan participants in one of the following manners: |
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directly from us |
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in the open market or |
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in negotiated transactions with third parties. |
Participation
in the Plan is entirely voluntary. Eligible persons may join the Plan at any time by following the procedures described below. Plan participants may terminate their
participation in the Plan at any time by properly notifying the Plan Administrator. If you do not elect to participate
in the Plan, you will continue to receive cash dividends on shares
registered in your name, if and when declared by our Board of
Directors.
Investing in our common stock involves risks that are described under the captions Item 1A.
Risk Factors and Item 7. Managements Discussion and Analysis of Financial Condition and Results
of Operations (or similar captions) in our most recent Annual Report on Form 10-K and under the
captions Item 1A. Risk Factors and Item 2. Managements Discussion and Analysis of Financial
Condition and Results of Operations in our Quarterly Reports on Form 10-Q, and in other reports
that we may file from time to time with the Securities and Exchange Commission.
Shares of our common stock are traded on the New York Stock Exchange, or NYSE, under the
symbol FR. The closing price of our common stock on
August 7, 2008 was $21.94 per share.
In order to maintain our qualification as a real estate investment trust under federal
income tax laws, ownership by any person of the Companys capital stock is limited, with certain
exceptions, to an aggregate of 9.9% in value of the outstanding capital stock of the Company.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE
DISCLOSURES IN THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date of this prospectus is August 8, 2008.
TABLE OF CONTENTS
We have not authorized any dealer, salesperson or other person to give you written information
other than this prospectus or any prospectus supplement or to make representations as to matters
not stated in this prospectus or any prospectus supplement. You must not rely on unauthorized
information. This prospectus and any prospectus supplement are not an offer to sell these
securities or our solicitation of your offer to buy these securities in any jurisdiction where that
would not be permitted or legal. The delivery of this prospectus or any prospectus supplement at
any time does not create an implication that the information contained herein or therein is correct
as of any time subsequent to their respective dates.
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration statement that we filed with the
Securities and Exchange Commission, or SEC, as a well-known seasoned issuer, as defined in Rule
405 under the Securities Act of 1933, using a shelf registration process. This prospectus provides you
with a general description of our common stock that we may sell pursuant to the Plan. As permitted
by the rules and regulations of the SEC, this prospectus omits various information, exhibits,
schedules and undertakings included in the registration statement.
Any prospectus supplement may add, supplement or change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement
together with the additional information described below under the heading Where You Can Find More
Information.
As used in this prospectus, the Company, we, us and our refer to First Industrial
Realty Trust, Inc. and its subsidiaries, including First Industrial, L.P., unless the context
otherwise requires.
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THE COMPANY
We are a real estate investment trust, or REIT, subject to Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended, which we refer to as the Code. Together with our
consolidated partnerships, corporations and limited liability companies, we are a self-administered
and fully integrated real estate company which owns, manages, acquires, sells and develops
industrial real estate. As of March 31, 2008, we owned 856 industrial properties (inclusive of
developments in progress) located in 28 states in the United States and one province in Canada,
containing an aggregate of approximately 74.3 million square feet of gross leasable area.
Our interests in our properties and land parcels are held through partnerships, corporations
and limited liability companies that we control, including First Industrial, L.P., which we refer
to as the Operating Partnership, of which the Company is the sole general partner. As of March 31,
2008, we also owned minority equity interests in, and provide various services to, seven joint
ventures which invest in industrial properties.
We use an operating approach that combines the effectiveness of decentralized, locally based
property management, acquisition, sales and development functions with the cost efficiencies of
centralized acquisition, sales and development support, capital markets expertise, asset management
and fiscal control systems.
We have grown and will seek to continue to grow through the acquisition and development of
industrial properties.
We are a Maryland corporation, organized on August 10, 1993, and completed our initial public
offering in June 1994. The Operating Partnership is a Delaware limited partnership organized in
November 1993. Our principal executive offices are located at 311 S. Wacker Drive, Suite 4000,
Chicago, Illinois 60606, telephone number (312) 344-4300. Our
website is www.firstindustrial.com.
The information on or linked to our website is not a part of, and is not incorporated by reference
into, this prospectus.
USE OF PROCEEDS
We will only receive proceeds from the sale of shares of common stock purchased from us
pursuant to the Plan. Any net proceeds we receive will be used for working capital and other
general corporate purposes. We have no basis for estimating either the number of shares that may be
purchased from us under the Plan or the prices that we will receive for such shares.
RISK FACTORS
Investment in our common stock involves risk. Before choosing to participate in the Plan and
acquiring any shares of our common stock offered pursuant to this prospectus, you should carefully
consider the risks of an investment in the Company set forth under the captions Item 1A. Risk
Factors and Item 7. Managements Discussion and Analysis of Financial Condition and Results of
Operations (or similar captions) in our most recent Annual Report on Form 10-K and under the
captions Item 1A. Risk Factors and Item 2. Managements Discussion and Analysis of Financial
Condition and Results of Operations in our Quarterly Reports on Form 10-Q, which reports are
incorporated herein by reference, and as described in
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our other filings with the SEC. Please also
refer to the section below entitled Forward-Looking Statements.
DESCRIPTION OF THE PLAN
The following questions and answers constitute our Dividend Reinvestment and Direct Stock
Purchase Plan. If you do not wish to participate in the Plan, you will receive cash dividends on
your shares of our common stock, if and when declared by our Board of Directors. The payment of
dividends on our common stock is at the discretion of our Board of Directors. The timing and
amount of future dividends, if any, will depend on our earnings, our
cash requirements, our financial condition, applicable government regulations and other factors
deemed relevant by our Board of Directors. Please also refer to the section below entitled
Distributions.
In the Plan, we refer to our current common stockholders and new investors who participate in
the Plan as participants.
General
1. What is the purpose of the Plan?
The purpose of the Plan is to offer a simple and convenient way for our existing common
stockholders to increase their investment by reinvesting dividends and/or purchasing more shares,
and for new investors to make an initial purchase of our common stock. The Plan is
primarily intended for the benefit of long-term investors, and is not for the benefit of
individuals or institutions that engage in short-term trading activities that could cause
aberrations in the overall trading volume of our common stock. From time to time, financial
intermediaries may engage in short-term positioning transactions in order to benefit from any
discount. These transactions may cause fluctuations in the trading volume of our common stock. We
reserve the right to modify, suspend or terminate participation in the Plan by otherwise eligible
common stockholders in order to eliminate practices that are not consistent with the purpose of the
Plan.
2. What are the benefits of the Plan?
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You have the opportunity to reinvest all or a portion of your cash dividends in
additional shares, which may be available at a discount from the
market price when the shares are issued and sold directly by us.
Please see the answers to Questions 18, 19, 20 and 21 for a
discussion of the discounts that may be available. |
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You may make an initial or optional cash investment in our common stock, which may
be available at a discount from the market price when the shares are issued and sold
directly by us. |
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You are not required to pay brokerage commissions or other expenses for enrollment
in the Plan or your purchases under the Plan, including reinvested dividends and
optional cash investments. |
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The Plan permits whole and fractional shares to be purchased with dividends. |
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By participating in the Plan, you avoid the necessity of safekeeping certificates,
and therefore have increased protection against loss, theft or destruction of your
certificates. |
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You will be provided with a regular statement for each account, which will include a
record of each transaction. |
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At any time, you may direct the Plans administrator to sell or transfer all or a
portion of the shares held in your account. |
3. What are the disadvantages of the Plan?
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You may not know the actual number of shares purchased until after the Investment
Date for optional cash investments or the Dividend Payment Date for shares purchased
with reinvested dividends. Please see the answers to Questions 8 and 9 for a
discussion of the terms Investment Date and Dividend Payment Date. |
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You will not control the prices at which shares are purchased or sold for your
account. If you make an optional payment but later change your mind and want it
returned to you, we will do so only if we receive your written request at least two
trading days prior to the applicable Investment Date. |
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You will not receive a purchase price discount on shares acquired for your Plan
account through open market or privately negotiated transactions. You will be treated
as receiving as distributions in addition to the amounts described below your
proportionate amount of any brokerage commissions we pay for any open market or
privately negotiated purchases by the agent in addition to the amounts described below. |
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With respect to cash dividends reinvested and applied to the purchase of shares
directly from us, you will be treated, for federal income tax purposes, as having
received a distribution equal to the fair market value (and not the purchase price, as
discounted) of the shares on the date of acquisition of the shares. If you are provided
a discount from the market price for our common stock when you acquire shares directly
from us with reinvested cash dividends, the fair market value of the common shares
received likely will exceed the amount of cash dividends that otherwise would be paid
to you in such instance. As a result, you likely will pay more taxes by acquiring
discounted shares directly from us with reinvested cash dividends than you otherwise
would have to pay if you received cash dividends. Each year, the Plan
Administrator will send you income tax information (including the
appropriate income tax forms) for reporting dividends. |
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We presently intend to take the position that a holder who makes an optional cash
purchase of common shares under the Plan will be treated as having received a
distribution equal to the excess, if any, of the Trading Price of the
common shares on the Investment
Date or the Waiver Investment Date, as applicable, less any discount, over the amount of the optional cash
payment made by the participant. |
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Your reinvested distributions, as well as any deemed distributions arising from an
optional cash purchase of common shares at a discount, will be taxable as dividends to
the extent of our earnings and profits, and may give rise to a liability for the
payment of income tax without providing you with the immediate cash to pay the tax when
it becomes due. |
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You cannot pledge the shares in your Plan account. |
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We will not pay interest on optional payments while we hold them pending investment. |
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A fee is charged upon the termination of your Plan account, as more fully explained
in the answer to Question 5. |
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Sales of shares from your Plan account will involve a fee per transaction to be
deducted from the proceeds of the sale by our Plans administrator (if you request
our Plans administrator to make such sale), plus a per-share processing fee and any
applicable stock transfer taxes on the sales, as more fully explained in the answer
to Question 5. |
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The availability of a discount for one purchase will not ensure the availability of
a discount or the same discount for future purchases. We may lower or eliminate
discounts at any time. Any discount to investors making optional cash purchases in
excess of the $10,000 maximum may be different than any discount available to other
investors. |
4. Who administers the Plan?
Computershare Trust Company, N.A., which we refer to as the Plan Administrator, administers
the Plan. As agent for the participants, the Plan Administrator keeps records, sends statements of
account to participants and performs other duties relating to the Plan. We pay all costs of
administering the Plan. Shares of our common stock purchased under the Plan are issued in the name
of the Plan Administrator or its nominee, as agent for the participants in the Plan. As record
holder of the shares held in participants accounts under the Plan, the Plan Administrator will
receive dividends on all shares held by it on the dividend record date, will credit such dividends
to the participants accounts on the basis of whole and fractional shares held in these accounts,
and will reinvest certain dividends in additional shares as directed by each participant. The Plan
Administrator makes all purchases of shares under the Plan.
The Plan Administrator may be reached at the following address and telephone number to obtain
information about the Plan:
Computershare Trust Company, N.A.
Attention: First Industrial Realty Trust, Inc.s
Dividend Reinvestment and Direct Stock Purchase Plan
P.O. Box 43078
Providence, RI 02940-3078
800-446-2617
www.computershare.com
Plan participants should include their account number(s) and include a
reference to First Industrial Realty Trust, Inc. in any correspondence.
You can obtain information about your account over the Internet through Investor Centre on
the Plan Administrators website, www.computershare.com/investor. You may also contact the Plan
Administrator through its website, www.computershare.com. The information
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on or linked to the
Plan Administrators website is not a part of and is not incorporated by reference into this
prospectus and any prospectus supplement.
5. What are the fees associated with participation?
You will incur no brokerage commissions, service charges or other expenses for establishing a
Plan account or for purchases made under the Plan for your account. You will be charged service
and brokerage commission fees for sales made under the Plan, and certain other fees associated with
returned checks or settlement of fractional shares in connection with the termination of your Plan
account. Any other costs of administration of the Plan will be borne by the Company.
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Creation of Plan Account |
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Service Charge
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Company paid |
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Dividend Reinvestment |
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Transaction fee
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Company paid |
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Brokerage commission
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Company paid |
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Optional Cash Investments |
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Transaction fee
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Company paid |
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Brokerage commission
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Company paid |
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Returned check fee
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$25 |
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ACH rejection fee
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$25 |
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Batch Order Sales |
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Service Charge
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$15 per order |
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Processing fee
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$0.12 per share sold |
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Market Order Sales |
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Service Charge
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$25 per order |
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Processing fee
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$0.12 per share sold |
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Termination of Plan Account |
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Service Charge (Settlement |
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of Fractional Shares)
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$15, plus any processing fee |
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Duplicate Account Statements |
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Copies of account statements |
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for prior years
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$10 per year requested |
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Eligibility
6. Who is eligible to become a participant?
Subject to the following
limitations, any person who has reached the age of majority in his or
her state of residence, whether he, she or it (in the case of an entity) is currently a stockholder
of the Company, is eligible to participate in the Plan.
Foreign Law Restrictions
If you are a citizen or resident of a country
or jurisdiction in which your participation in the Plan would be
unlawful, you will not be eligible to participate in the Plan.
REIT Qualification Restrictions
In order to maintain our qualification as a REIT, not more than 50% in value of our
outstanding capital stock may be owned, directly or indirectly, by five or fewer individuals (as
defined in the Code to include certain entities). Our Articles of Amendment and Restatement, which
we refer to as our charter, restricts beneficial and constructive ownership of more than 9.9% in
value of our issued and outstanding equity securities by any single stockholder. A majority of our
Independent Directors (as defined in our charter) may waive the ownership limit for a stockholder
based upon receipt of a ruling from the Internal Revenue Service, or IRS, an opinion of tax counsel
or other evidence satisfactory to the Independent Directors, that ownership in excess of this limit
will not jeopardize our status as a REIT. Please see Restrictions on Transfer of Capital Stock
for a more detailed discussion of our ownership limit. We may terminate, by written notice at any
time, any participants individual participation in the Plan if such participation could violate
the restrictions contained in our charter. We reserve the right to invalidate any purchases made
under the Plan that we determine, in our sole discretion, may violate the 9.9% ownership limit.
Exclusion from Plan for Short-Term Trading or Other Practices
You should not use the Plan to engage in short-term trading activities that could change the
normal trading volume of our common stock. If you do engage in short-term trading activities, we
may prevent you from participating in the Plan. We reserve the right to modify, suspend or
terminate participation in the Plan by otherwise eligible participants in order to eliminate
practices which we determine, in our sole discretion, are not consistent with the purposes or
operation of the Plan or which may adversely affect the market price of our common stock.
Exclusion from Plan at Our Discretion
In addition to the restrictions described above, we reserve the right to exclude you from, or
terminate your participation in, the Plan in our sole discretion.
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Participating in the Plan
7. How and when may I enroll in the Plan and become a participant?
If you are a record holder of our common stock and you wish to enroll in the Plan you may
complete and return the enclosed Direct Stock Purchase Plan Enrollment Form, or enroll online at
www.computershare.com/investor.
If you are a beneficial owner of our common stock (i.e. your shares are registered in a name
other than your own, such as that of a broker, bank nominee or
trustee), you may be able to arrange
for that entity to participate in the dividend reinvestment portion of the Plan on your behalf. You
should consult directly with the entity holding your shares to determine if you can enroll in the
Plan. If not, you will need to request that your bank, broker or trustee transfer some or all of
your shares into your own name in order to participate in the Plan. Persons who participate in the
Plan through a third party may only participate in the dividend reinvestment portion of the Plan.
You may not make optional cash investments until the Plan Administrator has established an account
in your name.
If you are not yet a record
holder of our common stock, you may enroll in the Plan by either
of the following methods:
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You may complete and return the enclosed Initial Enrollment Form to the
Plan Administrator, together with payment in an amount not less than
$200 nor more than
$10,000. Initial investments in an amount over $10,000 can only be
made with our prior consent pursuant to a Request for Waiver, as
discussed in the answer to Question 13. Payment should be made by check payable to Computershare - First
Industrial Realty Trust, Inc. All checks must be in U.S. funds and drawn on a U.S.
bank. Cash, money orders, travelers checks and third-party checks will not be
accepted. |
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You may enroll online at www.computershare.com/investor by following the
instructions provided for opening a First Industrial Realty Trust, Inc. stockholder
account. You will be asked to complete an online enrollment form and to submit an
amount for your initial investment. To make your initial investment, you may authorize
a one-time deduction from your U.S. bank account. |
Subject to our right to restrict participation in the Plan as described in the answer to
Question 6, by signing a Direct Stock Purchase Plan Enrollment Form
or an Initial Enrollment Form (either of which we sometimes refer to as an Enrollment Form), a common stockholder
or non-stockholder may become a participant, and, by checking the appropriate boxes on the
Enrollment Form, may choose among the investment options described in the answer to Question 8.
The Enrollment Forms are enclosed with this prospectus. Additional Enrollment Forms may be obtained
at any time by writing or calling the Plan Administrator at the address or telephone number set
forth under the answer to Question 4. The Enrollment Forms are also available through our website, www.firstindustrial.com, in the Investor Relations section under Dividend Reinvestment and
Direct Stock Purchase Plan. The information on or linked to our website does not constitute a
part of this prospectus or any prospectus supplement.
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8. What options are available under the Plan?
Dividend Reinvestment Options
The Enrollment Forms allow you to choose one of the three options listed below regarding your
dividends. If you do not specify otherwise on the Enrollment Form, your account will be set up for
full dividend reinvestment. You can change your reinvestment option at any time by notifying the
Plan Administrator. Dividend reinvestment options under the Plan include:
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Full Dividend Reinvestment: The cash dividends, minus any withholding tax, paid on
all shares that you own of record will automatically be fully reinvested in additional
shares of our common stock. |
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Partial Dividend Reinvestment: You will receive a check or electronic deposit of
cash dividends paid on the number of whole shares that you own of record that you
specify, minus any withholding tax. The cash dividends paid on all other shares
credited to your Plan account, minus any withholding tax, will be reinvested under the
Plan in additional shares of common stock. |
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No Dividend Reinvestment: None of your cash dividends will be reinvested. You will
receive a check or electronic deposit for the full amount of cash dividends, minus any
withholding tax, paid on the shares held in your Plan account. |
Optional Cash Investments
You can purchase shares of our common stock by using the Plans optional cash investment
feature. To purchase shares using this feature, you must invest at
least $50 at any one time (at
least $200 for an initial investment if you are not yet a record holder of common stock), but you
cannot invest more than $10,000 monthly. We may, in our discretion, grant a waiver permitting
larger investments (see the answer to Question 13). Any optional cash investment of less than
$50 (or less than $200 for an initial investment if you are not yet a common stockholder) and the
portion of any optional cash investment or investments totaling more than $10,000 monthly, except
for optional cash investments made pursuant to a Request for Waiver approved by us, will be
returned to you without interest. You have no obligation to make any optional cash investments
under the Plan unless you elect to make such investments, and until
you elect to cease such investments.
You may make an optional cash investment when joining the Plan by enclosing with the
Enrollment Form a check made payable to Computershare First Industrial Realty Trust, Inc.
Thereafter you may use the Automatic Monthly Electronic Deduction feature (as described in the
answer to Question 15) or send a check together with the form provided with your statement of
account or a written request with your account number (which is on your dividend check or available
from the Plan Administrator) together with your check. All checks must be in U.S. funds and drawn
on a U.S. bank. Cash, money orders, travelers checks and third-party checks will not be accepted.
You may also make initial and optional cash investments online through Investor Centre on
the Plan Administrators website, www.computershare.com/investor. In order to purchase shares
online, you must authorize the withdrawal of funds from your bank account. You do not need to
invest the same amount, or any amount, each month.
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Purchases of our common stock made with initial cash investments and with optional cash
investments from current common stockholders will be made on the first Investment Date following
timely delivery of your investment funds to the Plan Administrator. The Investment Date will be
the first day of the calendar month (or the first trading day
following the first
calendar day of that month if the first calendar day is not a trading day).
The Plan Administrator must receive optional cash payments no later than two trading days
before the Investment Date in order for those investments to be invested in our common stock
beginning on the Investment Date. Otherwise, the Plan Administrator may hold those funds and invest
them beginning on the next Investment Date unless you request a refund from the Plan Administrator.
No interest will be paid on funds held by the Plan Administrator pending investment. Accordingly,
you may wish to transmit any optional cash investments so that they reach the Plan Administrator
shortly but not less than two trading days before the Investment Date. This will minimize the
time period during which your funds are not invested. Participants have an unconditional right to
obtain the return of any cash payment up to two trading days prior to the Investment Date by
sending a written request to the Plan Administrator.
9. When will my participation in the Plan begin?
You may enroll in the Plan at any time.
If you elect on your Enrollment Form to have dividends reinvested under the Plan, your
participation in that portion of the Plan will begin on the next Dividend Payment Date, which is
the date we next pay dividends on our common stock as declared by our Board of Directors, provided
the Plan Administrator receives your Enrollment Form on or before the record date for the payment
of the dividend. We have historically paid dividends between the 15th and the
25th calendar day of each January, April, July and October, with the record date
typically occurring on the last trading day of the fiscal quarter to which the Dividend Payment
Date relates. For example, if the record date were June 30 for the July 21 dividend payment, the
Plan Administrator would have to receive your Enrollment Form on or before June 30 in order for
dividends paid on your shares to be used for dividend reinvestment on July 21. If the Plan
Administrator received the Enrollment Form after June 30, the July 21 dividend would be paid to you
in cash and your reinvestment of cash dividends would commence with the next Dividend Payment Date
on or around October 20. We cannot assure you that we will pay dividends according to this
schedule in the future or at all, and nothing contained in the Plan obligates us to do so. The Plan
does not represent a guarantee of dividends.
If you provide us with cash with which to make an optional cash investment, your participation
in that portion of the Plan will commence on the next Investment Date if your Enrollment Form and
sufficient funds to be invested are received on or before two trading days prior to the next
Investment Date. Should the funds to be invested arrive on or after that date, those funds will be
held without interest until they can be invested on the next Investment Date unless you request a
refund from the Plan Administrator.
Once enrolled, you will remain enrolled until you discontinue participation or until we
terminate the Plan. See the answers to Questions 28 and 29 regarding withdrawal from the Plan and
the answer to Question 38 regarding termination of the Plan.
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10. How and when can I change the amount of dividends to be reinvested?
You may change the dividend reinvestment option online at www.computershare.com/investor or by
submitting a newly executed Direct Stock Purchase Plan Enrollment Form to the Plan Administrator
(see the answer to Question 7). The Plan Administrator must receive any change in the number of
shares with respect to which the Plan Administrator is authorized to reinvest cash dividends prior
to the record date for a Dividend Payment Date to permit the new amount to apply to that payment.
11. Am I assured of receiving a dividend?
The payment of dividends is at the discretion of our Board of Directors and will depend upon
future earnings, our financial condition and other factors. There can be no assurance as to the
declaration or payment of any dividend on our common stock. We cannot assure you of a profit or
protect you against a loss on our shares of our common stock that you purchase or sell under the
Plan.
12. How are payments with insufficient funds handled?
In the event that any check or other deposit or fund transfer is returned unpaid for any
reason or your predesignated bank account does not have sufficient funds for an automatic
electronic deduction, your request for investment for that purchase will be null and void. The
Plan Administrator will immediately remove from your account any shares already purchased in
anticipation of receiving those funds and will sell such shares. If the net proceeds from the sale
of those shares are insufficient to satisfy the balance of the uncollected amounts, the Plan
Administrator may sell additional shares from your account as necessary to satisfy the uncollected
balance. There is a $25 charge for any check or other deposit or fund transfer that is returned
unpaid by your bank. This fee may be collected by the Plan Administrator through the sale of the
number of shares from your Plan account necessary to satisfy the fee.
13. How do I request a waiver to make an optional cash investment over the maximum monthly amount?
Optional cash investments in excess of $10,000 per month (including any initial investments in
excess of $10,000) may be made only by investors that submit Requests for Waiver that we approve.
We may choose not to accept Requests for Waiver during any period, or made by any individual or
entity. In our sole discretion, investors who wish to make optional investments in excess of
$10,000 per month should email us at waiverrequest@firstindustrial.com to determine if we are
accepting Requests for Waiver. If we respond that we are
then accepting Requests for Waiver, you may then submit a Request for Waiver (which can be
found on our website, www.firstindustrial.com, in the Investor Relations section under Dividend
Reinvestment and Direct Stock Purchase Plan) to us at
waiverrequest@firstindustrial.com. We will contact any
investor whose Request for Waiver is being considered.
We have sole discretion to grant or to refuse to grant any Request for Waiver. In deciding
whether to grant a Request for Waiver, we will consider relevant factors, including:
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whether the Plan is then purchasing newly issued shares of common stock; |
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our need for additional funds; |
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the attractiveness of obtaining those funds through the sale of our shares under the
Plan in comparison to other sources of funds; |
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the purchase price that may apply to any sale of our shares under the Plan; |
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the party submitting the request, including the extent and nature of that partys
prior participation in the Plan and the number of our shares that party already
holds; and |
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the aggregate amount of optional investments in excess of $10,000 for the month for
which Requests for Waiver have been submitted. |
If Requests for Waiver are submitted in any month for a total amount greater than the amount
we are then willing to accept, we may honor those requests on any basis that we, in our sole
discretion, consider appropriate.
14. How do I get a refund of an optional cash purchase if I change my mind?
You may obtain a refund of any optional cash purchase payment not yet invested by requesting,
in writing, the Plan Administrator to refund your payment. The Plan Administrator must receive your
request not later than two trading days prior to the next Investment Date. If the Plan
Administrator receives your request later than the specified date, your cash purchase payment will
be applied to the purchase of shares of our common stock under the Plan.
15. What is the Automatic Monthly Electronic Deduction feature of the Plan and how does it work?
The Automatic Monthly Electronic Deduction feature will enable you to make optional cash
investments in any amounts permitted under the Plan from a predesignated U.S. account.
To begin Automatic Monthly Electronic Deductions, you must complete and sign a Direct Debit
Authorization Form designating the amount to be withdrawn each month and the account from which
funds are to be withdrawn, and return the form to the Plan
Administrator. The Direct Debit Authorization Form is available on
the Plan Administrators website at www.computershare.com/investor. You may also enroll
online at www.computershare.com/investor. Your election of the Automatic Monthly Electronic
Deduction feature will become effective as soon as practicable after the Direct Debit Authorization
Form is processed. However, you should allow four to six weeks for the first investment to be
initiated using this Automatic Monthly Electronic Deduction feature.
Once you begin Automatic Monthly Electronic Deductions, the Plan Administrator will withdraw
funds from your designated account on the 25th day of each month, or the next trading day if the
25th is not a trading day. Those funds will be invested in our shares on the next Investment Date
for optional cash investments.
You may change the amounts of your future Automatic Monthly Electronic Deductions online at
www.computershare.com/investor or by completing and sending to the Plan Administrator a new Direct
Debit Authorization Form. You may terminate Automatic Monthly Electronic Deductions by notifying
the Plan Administrator in writing or online at
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www.computershare.com/investor. Your request will be
processed and will become effective as promptly as is practicable.
Purchases and Price
16. What is the source of the shares purchased under the Plan?
Shares of our common stock purchased for your account under the Plan will be purchased by the
Plan Administrator either from us out of our authorized but unissued shares or from third parties
on the open market or in privately negotiated transactions. We may, in our sole discretion,
determine the source from which shares will be purchased under the Plan.
17. When will the shares be purchased for my account?
If the Plan Administrator is purchasing your shares with reinvested dividends, your shares
will be purchased on the Dividend Payment Date, or the next trading
day, if the Dividend Payment Date falls on a non-trading day, then the next trading day. We cannot give you any assurance that we
will declare or pay dividends, and nothing contained in the Plan obligates us to declare or pay any
dividends. The Plan is not a guarantee of future dividends.
If the Plan Administrator is purchasing your shares with optional cash investments, your
shares will be purchased beginning on the next Investment Date. You should be aware that when the
Plan Administrator is purchasing shares on the open market, regulations may require the Plan
Administrator to make the purchases on a date later than the date otherwise specified by the Plan.
If the Plan Administrator is purchasing your shares with optional cash investments pursuant to
an approved Request for Waiver, your shares will be purchased over an investment period of ten
trading days, which we refer to as the Waiver Investment Period. A Waiver Investment Period may
not include or straddle any Dividend Payment Date or the two trading days immediately preceding or
immediately following any Dividend Payment Date. In addition, purchases will only be made for your
account on trading days within the Waiver Investment Period on which trades of our common stock are
reported on the NYSE and the Threshold Price, as described in the answer to Question 20, is
satisfied. Each trading day in the Waiver Investment Period on which these conditions are
satisfied is referred to as a Waiver Investment Date. In connection with an approved Request for
Waiver, the Plan Administrator will purchase for your account, on each Waiver Investment Date, the
maximum number of shares that may be purchased with one-tenth of your total proposed investment,
which we refer to as the Daily Waiver Investment Amount. At your request, the Plan Administrator
will deposit with DTC shares purchased for your account pursuant to a request for waiver, for a
service charge of $100 per deposit.
18. What will be the price of the shares purchased with reinvested dividends under the Plan?
Shares Acquired Directly from Us
The shares acquired directly from us under the Plan with reinvested dividends will be
purchased at a price equal to the Trading Price on the Dividend Payment Date, subject to any
discount. Trading Price means, for any given date, the volume weighted average price of our
common stock, rounded to four decimal places, as reported by the New York Stock Exchange for the
trading hours from 9:30 a.m. to 4:00 p.m., Eastern time (through and including the NYSE closing
print) on that date, obtained from Bloomberg, LP. Any discount will be fixed in our sole
discretion, and may be no greater than 5% of the Trading Price on the Dividend Payment Date. The
discount may be initiated, eliminated or adjusted at any time and in our sole discretion. We
intend to communicate the discount, if any, through our website, www.firstindustrial.com, in the
Investor Relations section under Dividend Reinvestment and Direct Stock Purchase Plan.
Open Market Purchases or Privately Negotiated Transactions
The shares acquired through open market or privately negotiated transactions under the Plan
with reinvested dividends will be purchased at a price equal to the
volume weighted average price of all
shares acquired on the Dividend Payment Date and any additional days required for the Plan
Administrator to complete the purchase of the requisite number of shares. Shares of our common
stock purchased with reinvested dividends in the open market or in privately negotiated
transactions will not be eligible for any purchase price discount.
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19. What will be the price of the shares purchased with both initial and optional cash investments
up to $10,000?
Shares Acquired Directly from Us
The shares purchased directly from us will be purchased at a price equal to the
Trading Price on the applicable Investment
Date, subject to any discount. Any discount will be fixed in our sole discretion, but may be no greater than 5% of the
Trading Price of the shares on the Investment Date. The discount may be initiated, eliminated or adjusted
at any time in our sole discretion. We intend to communicate the discount, if any, through our website, www.firstindustrial.com, in the Investor Relations section under Dividend Reinvestment and
Direct Stock Purchase Plan.
Open Market Purchases or Privately Negotiated Transactions
Independent Agent. An independent agent appointed by the Plan Administrator may buy our shares
for the Plan by purchasing them in the open market or in privately negotiated transactions. Except
for any limitations imposed by federal or state securities laws, the Plan Administrators
independent agent will have full discretion as to all matters relating to open-market purchases for
the Plan. The agent will determine the number of shares, if any, to be purchased on any given day,
the time of any purchase, the price to be paid for shares, the markets in which shares are to be
purchased and the persons (including brokers or dealers) from or through whom purchases are made.
Price. The purchase price of our shares purchased on the open market or in privately
negotiated transactions under the Plan will be equal to the volume weighted average price of all shares
acquired by the Plan Administrator or its independent agent on the Investment Date and any
additional days required for the Plan Administrator to complete the purchase of the requisite
number of shares. Shares of our common stock purchased with optional cash investments in the open
market or in privately negotiated transactions will not be eligible for any purchase price
discount.
Timing and Control. Purchases may be made over a number of days to meet the requirements of
the Plan. No interest will be paid on funds held by the Plan Administrator pending investment. The
Plan Administrators independent agent may commingle your funds with those of other participants in
the Plan to execute purchase transactions.
Because the Plan Administrator may arrange for the purchase of shares on behalf of the Plan
via open-market transactions through an independent agent, neither we nor any participant in the
Plan has the authority or power to control either the timing or the pricing of the shares purchased
on the open market. Therefore, you will not be able to precisely time your purchases through the
Plan, and you will bear the market risk associated with fluctuations in the price of our common
stock. It is anticipated that the independent agent will try to apply all funds to the purchase of
shares before the next Investment Date, subject to any applicable requirements of federal or state
securities laws.
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20. What will be the price of the shares purchased pursuant to a Request for Waiver?
The
price of the shares purchased by the Plan Administrator for your
account in connection with an approved Request for Waiver will be
based on the Trading Price on each Waiver Investment Date. We may, in
our sole discretion, establish prior to the beginning of a Waiver
Investment Period a minimum price, which we refer to as the Threshold
Price, applicable to purchases of shares during the Waiver Investment
Period. We may also provide for a discount to be applied to the
transaction. The discount will be available only for shares
purchased directly from us and, on any Waiver Investment Date, may be
no greater than 5% of the Trading Price on that Waiver Investment Date.
Threshold Price
We
may establish prior to the beginning of any Waiver Investment Period a Threshold Price
applicable to optional cash investments made pursuant to a Request for Waiver. This determination
will be made by us in our sole discretion after a review of current market conditions, the level of
participation in the Plan, current and projected capital needs, and
other factors. A Threshold Price established
for a Request for Waiver will not necessarily apply to any other Request for Waiver, and different
Threshold Prices may apply to different Requests for Waiver in any given month. Setting a Threshold
Price for a Waiver Investment Period does not affect the setting of a Threshold Price for any
subsequent Waiver Investment Period. For any particular month or any particular Request for Waiver,
we may waive our right to set a Threshold Price. Neither we nor the Plan Administrator will be
required to provide any written notice to you as to the Threshold Price for any Waiver Investment
Period.
If we establish a Threshold Price for any Request for Waiver, we will state the Threshold
Price as a dollar amount that the Trading Price of our common stock
must equal or exceed for each trading day
of the relevant Waiver Investment Period. In the event that the Threshold
Price is not satisfied for a particular trading day in the Waiver
Investment Period, then that date will not be considered a Waiver
Investment Date, and no shares
will be purchased pursuant to the Request for Waiver on that trading day of the Waiver Investment
Period. A trading day will also not be a Waiver Investment Date if no
trades of common stock are made on the NYSE for that day. The
Daily Waiver Investment Amount will be returned for each trading day
of a Waiver Investment Period that is not a Waiver Investment Date.
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For example, if the Threshold Price is
not satisfied or no trades are reported for three of the ten trading days in a Waiver
Investment Period, 3/10 (i.e., 30%) of such optional cash investment will be returned to you
without interest after the end of the Waiver Investment Period. The establishment of the Threshold
Price and the possible return of a portion of the investment apply only to optional cash
investments made pursuant to a Request for Waiver.
Waiver Discount
We may also establish a discount from the market price applicable for shares purchased
directly from us in connection with optional cash investments made pursuant to a Request for
Waiver. The Waiver Discount applicable to purchases made on any
Waiver Investment Date may be from 0% to 5% of the Trading Price on
that Waiver Investment Date, and may vary with each Request for Waiver. The waiver
discount will be established at our sole discretion.
A
waiver discount offered for a particular Request for Waiver will not necessarily apply to any other
Request for Waiver, and we may establish different waiver discounts for different Requests for
Waiver in a Waiver Investment Period.
21. Is the discount for shares purchased under the Plan subject to change?
The
discount on shares purchased directly from us will not exceed 5% of
the Trading Price on the applicable Investment Date, Dividend Payment
Date or Waiver Investment Date, and is subject to change or
discontinuance at our discretion at any time based on a number of factors, including current market
conditions, the level of participation in the Plan and our current and projected capital needs. We
intend to communicate the discount, if any, for any Investment Date or Dividend Payment Date
through our website, www.firstindustrial.com, in the Investor Relations section under Dividend
Reinvestment and Direct Stock Purchase Plan.
22. How will the number of shares purchased for my account be determined?
Dividend Reinvestments and Optional Cash Investments up to $10,000
The number of shares to be purchased for your account as of any Investment Date or Dividend
Payment Date will be equal to the total dollar amount to be invested for you divided by the
Trading Price on that Investment Date or Dividend Payment Date, less
any applicable discount, computed to the sixth decimal place. More information regarding the
applicable purchase price for dividend reinvestments and optional
cash investments is available in the answers to Questions 18 and 19.
The total dollar amount to be invested as of any Dividend Payment Date will be the sum of the
cash dividends on the number of shares applicable under your dividend reinvestment option (see the
answer to Question 8) to be reinvested in our common stock.
The amount to be invested may be reduced by any amount we are required to deduct for federal
tax withholding purposes (see Certain U.S. Federal Income Tax Considerations, below).
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Optional Cash Investment Pursuant to a Request for Waiver
The number of shares to be purchased for your account on each Waiver Investment
Date will be equal to the Daily Waiver Investment
Amount divided by the Trading Price on that Waiver Investment Date,
as reduced by any applicable waiver discount, computed to the sixth decimal place. More
information regarding the Daily Waiver Investment Amount is available in the answer to Question
17.
Sales of Common Shares
23. May I request that shares held in my account be sold?
Yes, you may request that all or any portion of the shares held in your account be sold either
when an account is being terminated (see the answers to Questions 28 and 29) or without terminating
the account. However, a fractional common share will not be sold unless all whole shares held in
the account are sold. If all shares (including any fractional share) held in your account are sold,
the account will be terminated automatically, and you will have to complete and file a new
Enrollment Form or enroll online in order to participate again in the Plan (see the answer to
Question 30).
You may sell shares in your account by either of the following methods:
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Market Order: A market order is a request to sell shares promptly at the current
market price. Market order sales are only available at www.computershare.com/investor
through Investor Centre or by calling the Plan Administrator directly at 1-800-446-2617.
Market order sale requests received at www.computershare.com/investor through Investor
Centre or by telephone will be placed promptly upon receipt during market hours (normally
9:30 a.m. to 4:00 p.m. Eastern Time). Any orders received after 4:00 p.m. Eastern Time
will be placed promptly on the next day the market is open. The price shall be the market
price of the sale obtained by the Plan Administrators broker, less a service charge of $25
per order and a processing fee of $0.12 per share sold. |
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Batch Order: A batch order is an accumulation of all sales requests by Plan
participants which is submitted by the Plan Administrator as a single order. Batch orders
are submitted on each market day, assuming there are sale requests to be processed. Sale
instructions for batch orders received by the Plan Administrator will be processed no later
than five trading days after the date on which the order is received (unless deferral is
required under applicable federal or state laws or regulations), assuming the applicable
market is open for trading and sufficient market liquidity exists. Batch order sales are
available at www.computershare.com/investor through Investor Centre, by calling the Plan
Administrator directly at 1-800-446-2617 or in writing. All sales requests received in
writing will be submitted as batch order sales. To maximize cost savings for batch order
sale requests, the Plan Administrator will seek to sell shares in round lot transactions.
For this purpose the Plan Administrator may combine each selling participants shares with
those of other selling Plan participants. In every case of a batch order sale, the sale
price for each selling Plan participant shall be the weighted average sale price obtained
by the Plan Administrators broker for each batch order processed by |
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the Plan Administrator and executed by the broker, less a service charge of $15 per order
and a processing fee of $0.12 per share sold. |
Sale Proceeds are normally paid by check and distributed within 24 hours after settlement of the
sale transaction.
24. What happens when I sell or transfer all the shares registered in my name?
Your participation in the Plan with respect to such holdings is automatically terminated.
Stock Certificates
25. Will I receive certificates for shares purchased under the Plan?
Common shares purchased under the Plan are registered in the name of the Plan Administrator or
its nominee as agent for the participants in the Plan. No certificates for any number of shares
credited to your Plan account will be issued to you unless you request them from the Plan
Administrator. Requests may be made online at www.computershare.com/investor, in writing
or by phone at 1-800-446-2617, and will be processed by the Plan Administrator within five trading
days. There is no charge for this service. Any remaining whole shares and any fractional shares
will continue to be credited to your account. Certificates for fractional shares will not be
issued.
Shares of our common stock which are purchased for and credited to your account under the Plan
may not be pledged. If you wish to pledge such shares, you must request that a certificate for such
shares first be issued in your name.
26. What is the effect on my account if I request a certificate for whole shares held in the
account?
If you maintain an account for reinvestment of dividends, all dividends on the shares for
which a certificate is requested will continue to be reinvested under the Plan unless you file a
new Direct Stock Purchase Plan Enrollment Form changing your investment election or terminate your
Plan participation.
27. May shares held in certificate form be deposited in my account?
At any time, you may deposit with the Plan Administrator any certificates for shares
registered in your name for safekeeping under the Plan. There is no charge for this custodial
service, and, by making the deposit, you avoid responsibility for loss, theft or destruction of the
certificate.
Certificates sent to the Plan Administrator should not be endorsed. If you elect to deposit
certificates with the Plan Administrator for safekeeping, the Plan Administrator recommends that
you send those certificates by certified or registered mail, return receipt requested, or via some
other form of traceable delivery, and properly insured. The Plan Administrator will send you a
statement confirming each deposit of certificates.
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The Plan Administrator will credit the shares represented by the certificates to your account
in book-entry form and will combine the shares with any whole and fractional shares then held in
your Plan account.
Withdrawal From the Plan
28. May I withdraw from the Plan?
Yes, you may terminate your participation in the Plan at any time online at
www.computershare.com/investor, by calling the Plan Administrator, by using the tear-off
form attached to your account statement or by writing a notice of termination to the Plan
Administrator using the address found in the answer to Question 4.
29. What happens when I terminate my account?
If the Plan Administrator receives your notice of termination near a Dividend Payment Date and
dividends are to be reinvested under your existing Enrollment Form, the Plan Administrator, in its
sole discretion, may either distribute such dividends in cash or reinvest them in shares on your
behalf. In the event reinvestment is made, the Plan Administrator will process the termination as
soon as practicable, but in no event later than five trading days after the investment is
completed. When terminating an account, you may request that a stock certificate be issued for all
whole shares held in the account. As soon as practicable after it receives your notice of
termination, the Plan Administrator will send to you (a) a certificate for all whole shares held in
the account and (b) a check representing the value of any fractional common share held in the
account. That check will be based on the then market value of our common stock, less a $15 service
charge and any processing fees. All dividends paid after an account is terminated will be paid to
you, unless you re-elect to participate in the Plan.
When terminating an account, you may request that all shares, both full and fractional, in
your Plan account be sold or that some of the shares be sold and a certificate be issued for the
remaining shares. The Plan Administrator will pay you the net proceeds of any sale (see the answer
to Question 23).
30. When may a common stockholder re-elect to participate in the Plan?
Generally, a common stockholder of record may re-elect to participate at any time. However, we
and the Plan Administrator reserve the right to reject any Enrollment Form on the grounds of
excessive participation and withdrawal. This reservation is intended to minimize unnecessary
administrative expenses and to encourage use of the Plan as a long-term common stockholder
investment service.
Reports to Participants
31. How will I keep track of my investments?
After an investment is made under the Plan for your account, the Plan Administrator will send
you a statement that will provide a record of the cost of the shares purchased for your account,
the number of shares purchased, the date on which the shares were credited to your account and the
total number of shares in your account. In addition, you will be sent income tax information for
reporting dividends. You may also obtain information about your account any
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time through the Investor Centre section of the Plan Administrators website,
www.computershare.com/investor.
Other Information
32. What happens if the Company issues a stock dividend or declares a stock split?
Upon a stock dividend or a stock split payable in shares, the Plan Administrator will receive
and credit to your account the applicable number of whole and/or fractional shares based on the
number of shares held in your account as of the record date for the stock dividend or split.
33. If the Company issues rights to purchase securities to the common stockholders, how will the
rights on shares held in my account be handled?
If we have a rights offering in which separately tradable and exercisable rights are issued to
registered common stockholders, the rights attributable to whole shares held in your Plan account
will be transferred to you as promptly as practicable after the rights are issued.
34. How are the shares in my account voted at stockholder meetings?
We will send you proxy materials for shares registered in the Plan Administrators name under
the Plan in the same manner as any shares registered in your own name. Shares of our common stock
credited to your Plan account may also be voted in person at the meeting.
35. What are the Companys and the Plan Administrators responsibilities under the Plan?
We and the Plan Administrator, in administering the Plan, are not liable for any act done in
good faith or required by applicable law or for any good faith omission to act, including any claim
of liability (a) arising out of failure to terminate a participants account upon such
participants death prior to receipt by the Plan Administrator of notice in writing of such death,
(b) with respect to the prices and times at which shares are purchased or sold for a participant,
or (c) with respect to any fluctuation in market value before or after any purchase or sale of
shares.
We and the Plan Administrator will not have any duties, responsibilities or liabilities other
than those expressly set forth in the Plan or as imposed by applicable laws, including federal
securities laws. Because the Plan Administrator has assumed all responsibility for administering
the Plan, we specifically disclaim any responsibility for any of the Plan Administrators actions
or inactions in connection with the administration of the Plan. None of our directors, officers,
employees or stockholders will have any personal liability under the Plan.
We and the Plan Administrator will be entitled to rely on completed forms and the proof of due
authority to participate in the Plan, without further responsibility of investigation or inquiry.
The Plan Administrator may resign as administrator of the Plan, in which case we would appoint
a successor administrator. In addition, we may replace the Plan Administrator with a successor
administrator at any time.
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36. What are my responsibilities under the Plan?
The shares in your account may revert to the state in which you live if the shares are deemed,
under your states laws, to have been abandoned by you. For this reason, you should notify the Plan
Administrator promptly of any change of address. The Plan Administrator will address account
statements and other communications to you at the last address you provide to them.
You will have no right to draw checks or drafts against your account or, except as expressly
provided herein to instruct the Plan Administrator with respect to any shares or cash held by the
Plan Administrator.
37. May the Plan be amended, suspended or terminated?
While we expect to continue the Plan indefinitely, we may amend, suspend or terminate the Plan
at any time, but such action will have no retroactive effect that would prejudice your interests.
To the extent practicable, any such amendment, suspension or termination will be announced at least
30 days prior to its effective date.
38. What happens if the Plan is terminated?
You will receive (a) a certificate for all whole shares held in your account and (b) a check
representing the value of any fractional common share held in your account and any uninvested cash
held in the account. Orders pending on or after the effective date of
the termination of the Plan will not be filled.
39. Who interprets and regulates the Plan?
We are authorized to issue interpretations, adopt regulations and take actions we deem
reasonably necessary to effectuate the Plan. Any action to effectuate the Plan taken by us or the
Plan Administrator in the good faith exercise of our respective judgment will be binding on all
Plan participants.
40. May the transfer agent and registrar for the shares change?
Computershare Trust Company, N.A., our Plan Administrator, presently also acts as transfer
agent and registrar for our shares. We reserve the right to terminate the transfer agent or Plan
Administrator and appoint a new transfer agent or Plan Administrator or administer the Plan
ourselves. All participants will receive notice of any such change.
41. What law governs the Plan?
The terms and conditions of the Plan and its operation will be governed by the laws of the
State of Maryland.
DESCRIPTION OF COMMON STOCK
The following is a summary of the material terms of our common stock. You should read our
charter and our amended and restated bylaws, which we refer to as our bylaws, which are each
incorporated by reference to the registration statement of which this prospectus is a part.
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General
Under our charter, we have authority to issue 100 million shares of our common stock, par
value $.01 per share. Under Maryland law, stockholders generally are not responsible for the
corporations debts or obligations. At April 25, 2008, we had outstanding 44,301,123 shares of our
common stock.
Terms
Subject to the preferential rights of any other shares or series of stock, including preferred
stock outstanding from time to time, and to the provisions of our charter regarding excess stock,
common stockholders will be entitled to receive dividends on shares of our common stock if, as and
when authorized and declared by our Board of Directors out of assets legally available for that
purpose. Subject to the preferential rights of any other shares or series of stock, including
preferred stock outstanding from time to time, and to the provisions of our charter regarding
excess stock, common stockholders will share ratably in the assets of the Company legally available
for distribution to its stockholders in the event of its liquidation, dissolution or winding up
after payment of, or adequate provision for, all known debts and liabilities of the Company. For a
discussion of excess stock, see Restrictions on Transfer of Capital Stock.
Subject to the provisions of our charter regarding excess stock, each outstanding share of
common stock entitles the holder to one vote on all matters submitted to a vote of stockholders,
including the election of directors, and, except as otherwise required by law or except as provided
with respect to any other class or series of stock, common stockholders will possess the exclusive
voting power. There is no cumulative voting in the election of directors, which means that the
holders of a majority of the outstanding shares of common stock can elect all of the directors then
standing for election, and the holders of the remaining shares of common stock will not be able to
elect any directors.
Common stockholders have no conversion, sinking fund or redemption rights, or preemptive
rights to subscribe for any securities of the Company.
Subject to the provisions of our charter regarding excess stock, all shares of common stock
will have equal dividend, distribution, liquidation and other rights, and will have no preference,
appraisal or exchange rights.
Under Maryland General Corporate Law, or the MGCL, a corporation generally cannot, subject to
certain exceptions, dissolve, amend its articles of incorporation, merge, sell all or substantially
all of its assets, engage in a share exchange or engage in similar transactions outside the
ordinary course of business unless approved by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter, unless the corporations articles of
incorporation set forth a lesser percentage, which percentage shall not be less than a majority of
all of the votes entitled to be cast on the matter. Our charter does not provide for a lesser
percentage in such situations.
Restrictions on Ownership
For the Company to qualify as a REIT under the Code, not more than 50% in value of its
outstanding capital stock may be owned, actually or by attribution, by five or fewer individuals,
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as defined in the Code to include certain entities, during the last half of a taxable year. To
assist us in meeting this requirement, we may take certain actions to limit the beneficial
ownership, directly or indirectly, by individuals of our outstanding equity securities. See
Restrictions on Transfer of Capital Stock.
Transfer Agent
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
CERTAIN PROVISIONS OF MARYLAND LAW AND
THE COMPANYS CHARTER AND BYLAWS
The following summary of certain provisions of Maryland law is not complete and is qualified
by reference to Maryland law and our charter and bylaws, which are incorporated by reference to the
registration statement of which this prospectus is a part.
Business Combinations
Under the MGCL, certain business combinations (as defined in the MGCL) between a Maryland
corporation and an interested stockholder are prohibited for five years after the most recent date
on which the interested stockholder became an interested stockholder. Under the MGCL, an
interested stockholder includes a person who is:
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the beneficial owner, directly or indirectly, of 10 percent or more of the voting
power of the outstanding voting stock of the corporation; or |
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an affiliate or associate of the corporation and was the beneficial owner, directly
or indirectly, of 10 percent or more of the voting power of the then-outstanding stock
of the corporation at any time within the two-year period immediately prior to the date
in question. |
For the purposes of the preceding paragraph MGCL defines business combinations to include
certain mergers, consolidations, share exchanges and asset transfers, some issuances and
reclassifications of equity securities, the adoption of a plan of liquidation or dissolution or the
receipt by an interested stockholder or its affiliate of any loan advance, guarantee, pledge or
other financial assistance or tax advantage provided by the Company. After the five-year moratorium
period, any such business combination must be recommended by the Board of Directors of the
corporation and approved by the affirmative vote of at least:
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80% of the votes entitled to be cast by holders of outstanding shares of voting
stock of the corporation voting together as a single group; and |
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two-thirds of the votes entitled to be cast by holders of voting stock of the
corporation other than voting stock held by the interested stockholder with whom (or
with whose affiliate) the business combination is to be effected or by any affiliate or
associate of the interested stockholder voting together as a single voting group. |
The super-majority vote requirements will not apply if, among other things, the corporations
stockholders receive a minimum price (as defined in the MGCL) for their shares
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and the consideration is received in cash or in the same form as previously paid by the
interested stockholder for its shares. These provisions of Maryland law do not apply, however, to
business combinations that are approved or exempted by the Board of Directors of the corporation
prior to the most recent time that the interested stockholder becomes an interested stockholder.
Our charter exempts from these provisions of the MGCL any business combination in which there is no
interested stockholder other than Jay H. Shidler, the Chairman of our Board of Directors, or any
entity controlled by Mr. Shidler, unless Mr. Shidler is an interested stockholder without taking
into account his ownership of shares of our common stock and the right to acquire shares of common
stock in an aggregate amount that does not exceed the number of shares of common stock that he
owned and had the right to acquire, including through the exchange of limited partnership units of
the Operating Partnership, at the time of the consummation of our initial public offering.
Control Share Acquisitions
The MGCL provides that control shares (as defined in the MGCL) of a Maryland corporation
acquired in a control share acquisition (as defined in the MGCL) have no voting rights except to
the extent approved by a vote of holders of two-thirds of the votes entitled to be cast on the
matter, excluding shares of stock owned by the acquiror or by officers or directors who are also
employees of the corporation. Control shares are voting shares of stock that, if aggregated with
all other shares of stock previously acquired by that person, would entitle the acquiror to
exercise voting power in electing directors within one of the following ranges of voting power:
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one-tenth or more but less than one-third; |
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one-third or more but less than a majority; or |
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a majority or more of all voting power. |
Control shares do not include shares that the acquiring person is then entitled to vote as a
result of having previously obtained stockholder approval. A control share acquisition means the
acquisition of ownership of or power to direct the voting power of issued and outstanding control
shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition may compel the Board of
Directors, upon satisfaction of certain conditions, including an undertaking to pay certain
expenses, to call a special meeting of stockholders to be held within 50 days after receiving a
demand to consider the voting rights of the shares. If no request for a meeting is made, the
corporation may itself present the question at any meeting of stockholders.
If voting rights are not approved at the meeting or if the acquiring person does not deliver
an acquiring person statement as required by the MGCL, then, subject to certain conditions and
limitations, the corporation may redeem any or all of the control shares, except those for which
voting rights have previously been approved. The corporations redemption of the control shares
will be for fair value determined, without regard to the absence of voting rights, as of the date
of the last control share acquisition or of any meeting of stockholders at which the voting rights
of the control shares are considered and not approved. If voting rights for control shares are
approved at a stockholders meeting and the acquiror becomes entitled to vote a majority of the
shares entitled to vote, all other stockholders may exercise appraisal rights. The fair value of
the
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shares as determined for purposes of the appraisal rights may not be less than the highest
price per share paid in the control share acquisition. Certain limitations and restrictions
otherwise applicable to the exercise of dissenters rights do not apply in the context of a control
share acquisition.
The control share acquisition statute does not apply to:
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shares acquired in a merger, consolidation or share exchange if the corporation is a
party to the transaction; or |
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acquisitions approved or exempted by our charter or bylaws. |
Our bylaws contain a provision exempting any and all acquisitions of its shares of capital
stock from the control share provisions of the MGCL. There can be no assurance that this bylaw
provision will not be amended or eliminated in the future.
Amendment of Charter
Except for certain minor exceptions permitted under the MGCL (e.g. modifying the number of
shares of stock authorized to be issued or to effect a reverse stock split), our charter, including
the provisions on classification of the Board of Directors discussed below, may be amended only by
the affirmative vote of the holders of not less than two-thirds of all of the votes entitled to be
cast on the matter.
Meetings of Stockholders
Our bylaws provide for annual meetings of stockholders to be held on the third Wednesday in
April or on any other day as may be established from time to time by our Board of Directors.
Special meetings of stockholders may be called by:
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our Chairman of the Board or our President; |
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a majority of the Board of Directors; or |
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stockholders holding at least a majority of our outstanding capital stock entitled
to vote at the meeting. |
Our bylaws provide that any stockholder of record wishing to nominate a director or have a
stockholder proposal considered at an annual meeting must provide written notice and certain
supporting documentation to the Company relating to the nomination or proposal not less than 75
days nor more than 180 days prior to the anniversary date of the prior years annual meeting or
special meeting in lieu thereof, which we refer to as the Anniversary Date. If the annual meeting
is called for a date more than seven calendar days before the Anniversary Date, stockholders
generally must provide written notice within 20 calendar days after the date on which notice of the
meeting is mailed to stockholders or the date of the meeting is publicly disclosed.
Although our bylaws do not give our Board of Directors any power to disapprove stockholder
nominations for the election of directors or proposals for action, they may have the effect of
precluding a contest for the election of directors or the consideration of stockholder proposals if
the proper procedures are not followed and of discouraging or deterring a third party from
conducting a solicitation of proxies to elect its own slate of directors or to approve its own
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proposal. Our bylaws may have those effects without regard to whether consideration of the
nominees or proposal might be harmful or beneficial to us and our stockholders.
Classification of the Board of Directors
Our bylaws provide that the number of directors may be established by the Board of Directors
but may not be fewer than the minimum number required by Maryland law nor more than twelve. Any
vacancy will be filled, at any regular meeting or at any special meeting called for that purpose,
by a majority of the remaining directors, except that a vacancy resulting from an increase in the
number of directors will be filled by a majority of the entire Board of Directors. Any director
elected by the Board to fill a vacancy will be subject to election at the next annual meeting of
stockholders. Under the terms of our charter, the directors are divided into three classes holding
office for terms expiring at the annual meetings of stockholders to be held in 2009, 2010 and 2011.
As the term of each class expires, directors in that class will be elected for a term of three
years and until their successors are duly elected and qualified. We believe that classification of
our Board of Directors will help to assure the continuity and stability of our business strategies
and policies as determined by our Board of Directors.
The classified board provision could have the effect of making the removal of incumbent
directors more time consuming and difficult, which could discourage a third party from making a
tender offer or otherwise attempting to obtain control of the Company, even though such an attempt
might be beneficial to us and our stockholders. At least two annual meetings of stockholders,
instead of one, will generally be required to effect a change in a majority of our Board of
Directors. Thus, the classified board provision could increase the likelihood that incumbent
directors will retain their positions. Holders of shares of common stock will have no right to
cumulative voting for the election of directors. Consequently, at each annual meeting of
stockholders, the holders of a majority of the shares of common stock will be able to elect all of
the successors of the class of directors whose term expires at that meeting.
RESTRICTIONS ON TRANSFER OF CAPITAL STOCK
For us to qualify as a REIT under the Code, among other things, not more than 50% in value of
our outstanding capital stock may be owned, actually or by attribution, by five or fewer
individuals (as defined in the Code to include certain entities) during the last half of a taxable
year. Our capital stock must also be beneficially owned by 100 or more persons during at least 335
days of a taxable year of 12 months or during a proportionate part of a shorter tax year. See
Certain U.S. Federal Income Tax Considerations. To ensure that we remain a qualified REIT, our
charter, subject to certain exceptions, provides that no holder may own, or be deemed to own by
virtue of the attribution provisions of the Code, more than an aggregate of 9.9% in value of our
capital stock. Any transfer of capital stock or any security convertible into capital stock that
would create a direct or indirect ownership of capital stock in excess of the ownership limit or
that would result in our disqualification as a REIT, including any transfer that results in the
capital stock being owned by fewer than 100 persons or results in us being closely held within
the meaning of Section 856(h) of the Code, will be null and void, and the intended transferee will
acquire no rights to the capital stock.
Capital stock owned, deemed to be owned, or transferred to a stockholder in excess of the
ownership limit will automatically be exchanged for shares of excess stock, as defined in our
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charter, which shares will be transferred, by operation of law, to us as trustee of a trust
for the exclusive benefit of the transferees to whom such capital stock may be ultimately
transferred without violating the ownership limit. While the excess stock is held in trust, it will
not be entitled to vote, it will not be considered for purposes of any stockholder vote or the
determination of a quorum for such vote, and it will not be entitled to participate in the
accumulation or payment of dividends or other distributions. A transferee of excess stock may, at
any time such excess stock is held by us in trust, designate as beneficiary of the transferee
stockholders interest in the trust representing the excess stock any individual whose ownership of
the capital stock exchanged into such excess stock would be permitted under the ownership limit,
and may transfer that interest to the beneficiary at a price not in excess of the price paid by the
original transferee-stockholder for the capital stock that was exchanged into excess stock.
Immediately upon the transfer to the permitted beneficiary, the excess stock will automatically be
exchanged for capital stock of the class from which it was converted.
In addition, we will have the right, for a period of 90 days during the time any excess stock
is held by us in trust, and, with respect to excess stock resulting from the attempted transfer of
our preferred stock, at any time when any outstanding shares of preferred stock of the series are
being redeemed, to purchase all or any portion of the excess stock from the original
transferee-stockholder at the lesser of the price paid for the capital stock by the original
transferee-stockholder or the market price of the capital stock, as determined in the manner set
forth in our charter, on the date we exercise our option to purchase or, in the case of a purchase
of excess stock attributed to preferred stock which has been called for redemption, at its stated
value, plus all accumulated and unpaid dividends to the date of redemption. The 90-day period
begins on the date of the violative transfer if the original transferee-stockholder gives notice to
us of the transfer or, if no such notice is given, the date the Board of Directors determines that
a violative transfer has been made.
DISTRIBUTIONS
We currently pay regular quarterly dividends to holders of our shares. Any future dividends
will be authorized by our Board of Directors and declared by us based upon a number of factors,
including the amount of funds from operations, our financial condition, debt service requirements,
the dividend requirements for our preferred shares, capital expenditure requirements for our
properties, our taxable income, the annual distribution requirements under the REIT provisions of
the Code and other factors our directors deem relevant. Our ability to make dividends to our
stockholders will depend on our receipt of distributions from our Operating Partnership. We can
make no assurances to you about our ability to make future dividends.
PLAN OF DISTRIBUTION
Subject to the discussion below and in certain instances, we will distribute newly issued
shares of common stock sold under the Plan. Unless directed otherwise, purchases and sales under
the Plan usually will be made through the Plan Administrator. You will only be responsible for a
transaction fee and your pro rata share of trading fees and any brokerage commissions associated
with your sales of shares of common stock attributable to you under the Plan. We will pay for all
fees and commissions associated with your purchases under the Plan.
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We may sell common stock to owners of shares (including brokers or dealers) who, in connection
with any resales of such shares, may be deemed to be underwriters. These shares, including shares
acquired through waivers granted with respect to the stock purchase program of the Plan, may be
resold in market transactions (including coverage of short positions) on any national security
exchange or automated quotation system on which common stock is traded or quoted, or in privately
negotiated transactions. Our common stock is listed on the NYSE under the symbol FR. The
difference between the price owners who may be deemed to be underwriters pay us for shares of
common stock acquired under the Plan, after deduction of the applicable discount, and the price at
which such shares are resold, may be deemed to constitute underwriting commissions received by
these owners in connection with such transactions.
Pursuant to the Plan, we may be requested to approve optional cash purchases in excess of the
allowable maximum amounts pursuant to requests for waiver on behalf of participants that may be
engaged in the securities business. In deciding whether to approve these requests, we will consider
relevant factors including, but not limited to:
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whether the Plan is then purchasing newly issued shares of common stock or is
purchasing our shares in the open market; |
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our need for additional funds; |
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the attractiveness of obtaining those funds through the sale of our shares under the
Plan in comparison to other sources of funds; |
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the purchase price that may apply to any sale of our shares under the Plan; |
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the party submitting the request, including the extent and nature of that partys
prior participation in the Plan and the number of shares that party holds of
record; and |
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the aggregate amount of optional investments in excess of $10,000 for the month for
which Requests for Waiver have been submitted. |
Persons who acquire shares of common stock through the Plan and resell them shortly after
acquiring them, including coverage of short positions, may under some circumstances be
participating in a distribution of securities that would require compliance with Regulation M under
the Exchange Act and may be considered to be underwriters within the meaning of the Securities Act.
We will not extend to these persons any rights or privileges other than those to which they would
be entitled as a Plan participant, nor will we enter into any agreement with these persons
regarding their purchase of the shares or any resale or distribution thereof. We may, however,
approve requests for optional cash purchases by these persons in excess of allowable maximum
limitations. If requests are submitted for any Investment Date for an aggregate amount in excess of
the amount that we are willing to accept, we may honor the requests in order of receipt, pro rata
or by any other method which we determine to be appropriate.
Subject to the availability of common stock registered for issuance under the Plan, there is
no total maximum number of shares that can be issued pursuant to the reinvestment of dividends.
From time to time, financial intermediaries may engage in positioning transactions in order to
benefit from the discount acquired through the reinvestment of dividends and optional cash payments
under the Plan.
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Common stock may not be available under the Plan in all states. This prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, any common stock or other
securities in any state or any other jurisdiction to any person to whom it is unlawful to make such
offer in such jurisdiction.
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material United States federal income tax
consequences to U.S. participants of participating in the Plan, as well as considerations regarding
our election to be taxed as a REIT and the ownership and disposition of our common stock offered by
this prospectus. This summary is for general information only and is not tax advice This discussion
is based on the Code, Treasury Regulations and administrative and judicial interpretations thereof,
all as in effect as of the date of this prospectus, and all of which are subject to change,
possibly with retroactive effect. This discussion does not purport to deal with all aspects of
federal income taxation that may be relevant to investors subject to special treatment under the
U.S. federal income tax laws, such as dealers in securities, insurance companies, tax-exempt
entities (except as described herein), expatriates, persons subject to the alternative minimum tax,
financial institutions and partnerships or other pass-through entities. This section applies only
to purchasers of common stock who hold such stock as capital assets within the meaning of
Section 1221 of the Code. This summary does not discuss any state, local or foreign tax
consequences associated with the participation in the Plan, the ownership, sale or other
disposition of our stock or our election to be taxed as a REIT.
You are urged to consult your tax advisors, regarding the specific tax consequences to you of:
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participation in the Plan; |
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the acquisition, ownership, and/or sale or other disposition of the common stock
offered under this prospectus, including the federal, state, local, foreign and other
tax consequences; |
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our election to be taxed as a REIT for federal income tax purposes; and |
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potential changes in the applicable tax laws. |
When we use the term US stockholder or U.S. participant, we mean a holder of our common
stock or a participant in the Plan, respectively, who, for United States federal income tax
purposes is:
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an individual citizen or resident of the United States; |
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a corporation (or other entity treated as a corporation for U.S. federal income tax
purposes) created or organized in or under the laws of the United States or any
political subdivision thereof; |
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an estate whose income is subject to U.S. federal income taxation regardless of its
source; or |
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a trust if a U.S. court is able to exercise primary supervision over the
administration of that trust and one or more U.S. persons have the authority to |
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control all substantial decisions of the trust, or it has a valid election in place
to be treated as a U.S. person. |
Participation in the Plan by U.S. Participants
The following summary describes certain United States federal income tax consequences of
participating in the Plan to U.S. participants.
Distributions you receive on shares of our common stock you hold in the Plan and that are
reinvested in newly issued shares will be treated for federal income tax purposes as a taxable
stock distribution to you. Accordingly, you will receive taxable dividend income in an amount equal
to the fair market value of the shares of our common stock that you receive on the date we make
distributions (to the extent we have current or accumulated earnings and profits for federal income
tax purposes). We intend to take the position that the fair market value of the newly issued shares
purchased with reinvested distributions equals the volume weighted
average price of our common stock, rounded to four decimal places, as
reported by the New York Stock Exchange for the trading hours from
9:30 a.m. to 4:00 p.m. Eastern time (through and including
the NYSE closing point) on the date that we issue the shares to you,
obtained from Bloomberg, LP. The treatment described above will apply to
you whether or not the shares are issued to you at a discount. On the other hand, we intend to take
the position that distributions you receive on shares of our common stock you hold in the Plan that
are reinvested in shares of our common stock purchased by the agent in the open market or in
privately negotiated transactions are treated for federal income tax purposes as a taxable dividend
to you in an amount equal to the purchase price of such shares (to the extent that we have current
or accumulated earnings and profits for federal income tax purposes).
Your statement of account will show the fair market value of the common stock purchased with
reinvested distributions on the applicable date we issue the shares to you. You also will receive a
Form 1099-DIV after the end of the year which will show for the year your total dividend income,
your amount of any return of capital distribution and your amount of any capital gain dividend.
The IRS has indicated in certain private letter rulings that a participant in both the
dividend reinvestment and optional cash purchase portions of a plan similar to our Plan who makes
an optional cash purchase under the Plan will be treated as having received a distribution equal to
the excess, if any, of the fair market value on the investment date of the common shares over the
amount of the optional cash payment made by the participant. Certain other private letter rulings
have held that a participant in only the optional cash purchase portion of a plan who makes an
optional cash purchase of shares under the plan at a discount will not be treated as having
received a distribution. We presently intend to take the position that a holder who makes an
optional cash purchase of common shares under the Plan will be treated as having received a
distribution equal to the excess, if any, of the fair market value on the investment date of the
common shares, including any discount, over the amount of the optional cash payment made by the
participant. We also intend to take the position that the fair market value for such determination
will be equal to the volume-weighted average NYSE prices of our common stock on the applicable
investment date. Any such distribution would result in taxable dividend income, reduced basis in
the shares of common stock, capital gain or some combination thereof, under the rules described
above.
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Under the Plan, we will bear any trading fees or brokerage commissions related to the
acquisition of, but not the sale of, shares of our common stock. The IRS has held in certain
private letter rulings that brokerage commissions paid by a corporation with respect to open market
purchases on behalf of participants in a dividend reinvestment plan or pursuant to the optional
cash purchase features of a plan were to be treated as constructive distributions to participants
who were shareholders of the corporation. In these rulings the IRS determined that the payment of
these fees or commissions was subject to income tax in the same manner as distributions and
includable in the participants cost basis of the shares purchased. Accordingly, to the extent that
we pay brokerage commissions with respect to any open market or privately negotiated purchases made
with reinvested dividends or optional cash purchases by the agent, we presently intend to take the
position that shareholder participants received their proportionate amount of the commissions as
distributions in addition to the amounts described above. We intend to take the position that
administrative expenses of the Plan paid by us are not constructive distributions to you.
Your tax basis in your common shares acquired under the dividend reinvestment features of the
Plan generally will equal the total amount of distributions you are treated as receiving, as
described above. Your tax basis in your common shares acquired through an optional cash purchase
under the Plan generally will equal the total amount of any distributions you are treated as
receiving, as described above, plus the amount of the optional cash payment. Your holding period
for the shares of our common stock acquired under the Plan will begin on the day following the date
such shares were purchased for your account. Consequently, shares of our common stock purchased in
different quarters will have different holding periods.
You will not realize any gain or loss when you receive certificates for whole shares of our
common stock credited to your account, either upon your request, when you withdraw from the Plan or
if the Plan terminates. However, you will recognize gain or loss when whole shares of our common
stock or rights applicable to our common stock acquired under the Plan are sold or exchanged. You
will also recognize gain or loss when you receive a cash payment for a fractional share of our
common stock credited to your account when you withdraw from the Plan or if the Plan terminates.
The amount of your gain or loss will equal the difference between the amount you receive for your
shares or fractional shares of our common stock or rights applicable to common stock, net of any
costs of sale paid by you, and your tax basis of such shares.
Taxation of the Company
The following is a general discussion of certain material U.S. federal income tax consequences
of the ownership and disposition of our common stock and of our qualification and taxation as a
REIT.
As used herein, the term non-U.S. stockholder means a holder of our common stock that
for U.S. federal income tax purposes is either a nonresident individual alien or a corporation,
estate or trust that is not a U.S. stockholder.
The U.S. federal income tax treatment of a partner in a partnership holding common stock will
depend on the activities of the partnership and the status of the partner. A partner in such
partnership should consult its own tax advisor regarding the federal income treatment to the
partner of such partnership holding our common stock.
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Taxation of the Company as a REIT
This section is a summary of the material U.S. federal income tax matters of general
application pertaining to REITs under the Code. This discussion is based upon current law, which is
subject to change, possibly on a retroactive basis. The provisions of the Code pertaining to REITs
are highly technical and complex and sometimes involve mixed questions of fact and law. This
section does not discuss U.S. federal estate or gift taxation or state, local or foreign taxation.
In the opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP:
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commencing with our taxable year ended December 31, 1994, we have been organized and
operated in conformity with the requirements for qualification and taxation as a REIT
under the Code; and |
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our current and proposed method of operation (as represented by us to Barack
Ferrazzano Kirschbaum & Nagelberg LLP in a written certificate) will enable us to
continue to meet the requirements for qualification and taxation as a REIT under the
Code. |
Barack Ferrazzano Kirschbaum & Nagelberg LLPs opinion is based on various assumptions and is
conditioned upon certain representations made by us as to factual matters with respect to us and
certain partnerships, limited liability companies and corporations through which we hold
substantially all of our assets. Moreover, our qualification and taxation as a REIT depends upon
our ability to meet, as a matter of fact, through actual annual operating results, distribution
levels, diversity of stock ownership and various other qualification tests imposed under the Code
discussed below, the results of which will not be reviewed by Barack Ferrazzano Kirschbaum &
Nagelberg LLP. No assurance can be given that the actual results of our operations for any
particular taxable year will satisfy those requirements.
To qualify as a REIT under the Code for a taxable year, we must meet certain organizational
and operational requirements, which generally require us to be a passive investor in real estate
and to avoid excessive concentration of ownership of our capital stock. Generally, at least 75% of
the value of our total assets at the end of each calendar quarter must consist of real estate
assets, cash or governmental securities. We generally may not own securities possessing more than
10% of the total voting power, or representing more than 10% of the total value, of the outstanding
securities of any issuer, and the value of any one issuers securities may not exceed 5% of the
value of our assets. Shares of qualified REITs, qualified temporary investments, shares of certain
wholly owned subsidiary corporations known as qualified REIT subsidiaries and shares of certain
subsidiary corporations known as taxable REIT subsidiaries are exempt from these prohibitions. A
REIT may own up to 100% of the securities of a taxable REIT subsidiary subject only to the
limitations that the aggregate value of the securities of all taxable REIT subsidiaries owned by
the REIT does not exceed 20% of the value of the assets of the REIT, and the aggregate value of all
securities owned by the REIT (including the securities of all taxable REIT subsidiaries, but
excluding governmental securities) does not exceed 25% of the value of the assets of the REIT. A
taxable REIT subsidiary generally is any corporation (other than another REIT and corporations
involved in certain lodging, healthcare, franchising and licensing activities) owned by a REIT with
respect to which the REIT and such corporation jointly elect that such corporation shall be treated
as a taxable REIT subsidiary.
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Also, for each taxable year, at least 75% of a REITs gross income must be derived from
specified real estate sources and 95% must be derived from such real estate sources plus certain
other permitted sources. Real estate income for purposes of these requirements includes:
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gain from the sale of real property not held primarily for sale to customers in the
ordinary course of business; |
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dividends on REIT shares; |
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interest on loans secured by mortgages on real property; |
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certain rents from real property; and |
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certain income from foreclosure property. |
For rents to qualify, they may not be based on the income or profits of any person, except
that they may be based on a percentage or percentages of gross receipts. Also, subject to certain
limited exceptions, the REIT may not manage the property or furnish services to tenants except
through an independent contractor which is paid an arms-length fee and from which the REIT derives
no income. However, a REIT may render a de minimis amount of otherwise impermissible services to
tenants, or in connection with the management of property, without causing any income from the
property (other than the portion of the income attributable to the impermissible services) to fail
to qualify as rents from real property. In addition, a taxable REIT subsidiary may provide certain
services to tenants of the REIT, which services could not otherwise be provided by the REIT or the
REITs other subsidiaries.
Substantially all of our assets are held through certain partnerships. In general, in the case
of a REIT that is a partner in a partnership, applicable regulations treat the REIT as holding
directly its proportionate share of the assets of the partnership and as being entitled to the
income of the partnership attributable to such share based on the REITs proportionate share of
such partnership capital.
We must satisfy certain ownership restrictions that limit the concentration of ownership of
our capital stock and the ownership by us of our tenants. Our outstanding capital stock must be
held by at least 100 stockholders during at least 335 days of a taxable year or during a
proportionate part of a taxable year of less than 12 months. No more than 50% in value of our
outstanding capital stock, including in some circumstances capital stock into which outstanding
securities might be converted, may be owned actually or constructively by five or fewer individuals
or certain entities at any time during the last half of any taxable year. Accordingly, our charter
contain certain restrictions regarding the transfer of our common stock, preferred stock and any
other outstanding securities convertible into stock when necessary to maintain our qualification as
a REIT under the Code. However, because the Code imposes broad attribution rules in determining
constructive ownership, no assurance can be given that the restrictions contained in our charter
will be effective in maintaining our REIT qualification. See Restrictions on Transfer of Capital
Stock above.
So long as we qualify for taxation as a REIT, distribute at least 90% of our REIT taxable
income, computed without regard to net capital gain or the dividends paid deduction, for each
taxable year to our stockholders annually and satisfy certain other distribution requirements, we
will not be subject to U.S. federal income tax on that portion of such income distributed to
stockholders. We will be taxed at regular corporate rates on all income not distributed to
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stockholders. Our policy is to distribute at least 90% of our taxable income annually. We may
elect to pass through to our stockholders on a pro rata basis any taxes paid by us on our
undistributed net capital gain income for the relevant tax year. REITs also may incur taxes for
certain other activities or to the extent distributions do not satisfy certain other requirements.
Our failure to qualify during any taxable year as a REIT could have a material adverse effect
upon our stockholders. If disqualified for taxation as a REIT for a taxable year, we also would be
unable to elect to be taxed as a REIT for the next four taxable years, unless certain relief
provisions were available. We would be subject to U.S. federal income tax at corporate rates on all
of our taxable income and would not be able to deduct any dividends paid, which could have a
material adverse effect on our business and could result in a discontinuation of or substantial
reduction in dividends to stockholders. Should the failure to qualify as a REIT be determined to
have occurred retroactively in one of our earlier tax years, the imposition of a substantial U.S.
federal income tax liability on us attributable to any nonqualifying tax years could have a
material adverse effect on our business and could result in a discontinuation of or substantial
reduction in dividends to stockholders.
In the event that we fail to meet certain gross income tests applicable to REITs, we may
retain our qualification as a REIT if we pay a penalty tax equal to the amount by which 95% (or 90%
for taxable years prior to 2005) or 75% of our gross income exceeds our gross income qualifying
under the 95% or 75% gross income test, respectively (whichever amount is greater), multiplied by a
fraction intended to reflect our profitability, so long as such failure was considered to be due to
reasonable cause and not willful neglect and certain other conditions are satisfied. For taxable
years after 2004, if we fail to meet the 5% or 10% asset tests applicable to REITs at the end of
any quarter and do not cure such failure within 30 days thereafter, we may nonetheless retain our
qualification as a REIT provided that the failure was due to assets the value of which did not
exceed a specific statutory de minimis amount and certain other conditions are satisfied. For
violations of any of the REIT asset tests not described in the preceding sentence, we may
nonetheless retain our qualification as a REIT if we pay a tax equal to the greater of $50,000 or
35% of the net income generated by the non-qualifying assets, so long as any such failure was
considered to be due to reasonable cause and not willful neglect and certain other conditions are
satisfied. In addition, if we fail to satisfy certain requirements of the REIT provisions (other
than the failures described above in the preceding sentences), we may nonetheless retain our
qualification as a REIT if we pay a penalty of $50,000 for each such failure, so long as each such
failure was considered to be due to reasonable cause and not willful neglect. Any such taxes or
penalty amounts could have a material adverse effect on our business and could result in a
discontinuation of or substantial reduction in dividends to stockholders.
Taxable U.S. Stockholders
Distributions. Except as discussed below, so long as we qualify for taxation as a REIT,
distributions with respect to our common stock made out of current or accumulated earnings and
profits (and not designated as capital gain dividends) will be includible by a U.S. stockholder as
ordinary income. None of these distributions will be eligible for the dividends received deduction
for a corporate stockholder. Distributions in excess of current and accumulated earnings and
profits will not be taxable to a U.S. stockholder to the extent that they do not exceed the
adjusted tax basis of the holders common stock (as determined on a share by share basis), but
rather will be treated as a return of capital and reduce the adjusted tax basis of such common
stock. To the
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extent that such distributions exceed the adjusted tax basis of a U.S. stockholders common
stock, they will be included in income as long-term capital gain if the stockholder has held its
shares for more than one year and otherwise as short-term capital gain. Any dividend declared by us
in October, November or December of any year payable to a stockholder of record on a specified date
in any such month shall be treated as both paid by us and received by the stockholder on
December 31 of such year, provided that the dividend is actually paid by us during January of the
following calendar year.
Dividends paid to a U.S. stockholder generally will not qualify for the 15% tax rate
applicable to qualified dividend income. Qualified dividend income generally includes dividends
paid by domestic C corporations and certain qualified foreign corporations to most noncorporate
U.S. stockholders. Because we are not generally subject to U.S. federal income tax on the portion
of our REIT taxable income that we distribute to our stockholders, our dividends generally will not
be eligible for the 15% tax rate (for years through 2010) on qualified dividend income. As a
result, our ordinary REIT dividends will continue to be taxed at the higher tax rate applicable to
ordinary income. Currently, the highest marginal individual income tax rate on ordinary income is
35%. However, the 15% tax rate for qualified dividend income will apply to our ordinary REIT
dividends, if any, that are (i) attributable to dividends received by us from non-REIT
corporations, such as our taxable REIT subsidiaries, or (ii) attributable to income upon which we
have paid corporate income tax (e.g., to the extent that we distribute less than 100% of our
taxable income) provided certain holding period requirements are met.
Distributions that are designated as capital gain dividends will generally be taxed as
long-term capital gains (to the extent they do not exceed our actual net capital gain for the
taxable year) without regard to the period for which the holder has held our common stock. However,
corporate holders may be required to treat up to 20% of certain capital gain dividends as ordinary
income.
We may elect to retain and pay income tax on our net capital gain received during the taxable
year. If we so elect for a taxable year, our U.S. stockholders would include in income as long-term
capital gains their proportionate share of such portion of our undistributed net capital gains for
the taxable year as we may designate. A U.S. stockholder would be deemed to have paid its share of
the tax paid by us on such undistributed net capital gain, which would be credited or refunded to
the stockholder. The U.S. stockholders basis in our common stock would be increased by the amount
of undistributed net capital gain included in such U.S. stockholders income, less the capital
gains tax paid by us.
Except as noted below, the maximum tax rate on long-term capital gain applicable to
non-corporate taxpayers is 15% for sales and exchanges of assets held for more than one year
occurring in tax years beginning on or before December 31, 2010. The maximum tax rate on long-term
capital gain from the sale or exchange of section 1250 property, or depreciable real property, is
25% to the extent that such gain would have been treated as ordinary income if the property were
section 1245 property (i.e., to the extent of depreciation recapture). With respect to
distributions that we designate as capital gain dividends and any retained capital gain that we are
deemed to distribute, we generally may designate whether such a distribution is taxable to our
non-corporate U.S. stockholders at a 15% or 25% tax rate. Thus, the tax rate differential between
capital gain and ordinary income for non-corporate taxpayers may be significant. In addition, the
characterization of income as capital gain or ordinary income may
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affect the deductibility of capital losses. A non-corporate taxpayer may deduct capital losses
not offset by capital gains against its ordinary income only up to a maximum annual amount of
$3,000. A non-corporate taxpayer may carry forward unused capital losses indefinitely. A corporate
taxpayer must pay tax on its net capital gain at ordinary corporate rates. A corporate taxpayer may
deduct capital losses only to the extent of capital gains, with unused losses being carried back
three years and forward five years.
Stockholders may not include in their individual income tax returns any of our net operating
losses or capital losses. Instead, such losses would be carried over by us for potential offset
against our future income (subject to certain limitations). Taxable distributions from us and gain
from the disposition of common stock will not be treated as passive activity income and, therefore,
stockholders generally will not be able to apply any passive activity losses (such as losses from
certain types of limited partnerships in which the stockholder is a limited partner) against such
income. In addition, taxable distributions from us generally will be treated as investment income
for purposes of the investment interest limitations. Capital gains from the disposition of common
stock (or distributions treated as such) will be treated as investment income only if the
stockholder so elects, in which case such capital gains will be taxed at ordinary income rates. We
will notify stockholders after the close of our taxable year as to the portions of the
distributions attributable to that year that constitute each of (i) distributions taxable at
ordinary income tax rates, (ii) capital gains dividends, (iii) qualified dividend income, if any,
and (iv) nondividend distributions.
Sale or Exchange of Common Stock. Upon the sale, exchange or other taxable disposition of
common stock to or with a person other than us, a stockholder generally will recognize gain or loss
equal to the difference between (i) the amount of cash and the fair market value of any property
received (less any portion thereof attributable to accumulated and declared but unpaid dividends,
which will be taxable as a dividend to the extent of our current and accumulated earnings and
profits attributable thereto) and (ii) the stockholders adjusted tax basis in such stock. Such
gain or loss will be capital gain or loss and will be long-term capital gain or loss if such stock
has been held for more than one year. In general, any loss upon a sale or exchange of common stock
by a holder who has held such stock for six months or less (after applying certain holding period
rules) will be treated by such holder as long-term capital loss to the extent of distributions from
us required to be treated by such stockholder as long-term capital gain. All or a portion of any
loss realized upon a taxable disposition of common stock may be disallowed if substantially
identical stock is purchased within 30 days before or after the disposition.
Information Reporting and Backup Withholding. Information reporting (to the IRS) will apply to
dividends paid on our common stock (and the amount of tax withheld, if any) and to the proceeds
received from the sale or other disposition of our common stock. Under the back-up withholding
rules, a stockholder may be subject to backup withholding tax at a current rate of 28% (subject to
increase to 31% after 2010) with respect to dividends paid and with respect to any proceeds for the
sale or other disposition of common stock unless such stockholder (a) is a corporation or comes
within certain other exempt categories and, when required, demonstrates this fact or (b) provides a
taxpayer identification number and otherwise complies with applicable requirements of the backup
withholding rules. A stockholder that does not provide us with its correct taxpayer identification
number may also be subject to penalties imposed by the Service. Any amount paid as backup
withholding will be creditable against such stockholders U.S.
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federal income tax liability, and may entitle such stockholder to a refund, provided the
stockholder timely furnishes the required information to the IRS.
Tax-Exempt U.S. Stockholders
Distributions by us to a tax-exempt U.S. stockholder generally should not constitute unrelated
business taxable income (UBTI) provided that (i) the U.S. stockholder has not financed the
acquisition of its common stock with acquisition indebtedness within the meaning of the Code and
(ii) our common stock is not otherwise used in an unrelated trade or business of such tax-exempt
U.S. stockholder.
Notwithstanding the preceding paragraph, under certain circumstances, qualified trusts that
hold more than 10% (by value) of our shares of stock may be required to treat a certain percentage
of dividends as UBTI. This requirement will only apply if we are treated as a pension-held REIT.
The restrictions on ownership of shares of stock in our Charter should prevent us from being
treated as a pension-held REIT, although there can be no assurance that this will be the case.
Non-U.S. Stockholders
The following discussion addresses the rules governing the U.S. federal income taxation of the
ownership and disposition of common stock by non-U.S. stockholders. These rules are complex, and no
attempt is made herein to provide more than a brief summary of such rules. Accordingly, the
discussion does not address all aspects of U.S. federal income taxation and does not address U.S.
estate and gift tax consequences or state, local or foreign tax consequences that may be relevant
to a non-U.S. stockholder in light of its particular circumstances.
Distributions. Distributions to a non-U.S. Stockholder that are neither attributable to gain
from sales or exchanges by us of U.S. real property interests nor designated as capital gains
dividends will be treated as dividends of ordinary income to the extent that they are made out of
current or accumulated earnings and profits. These distributions ordinarily will be subject to
withholding of U.S. federal income tax on a gross basis at a rate of 30%, or a lower rate as
permitted under an applicable income tax treaty, unless the dividends are treated as effectively
connected with the conduct by the non-U.S. stockholder of a U.S. trade or business. Under some
treaties, however, lower withholding rates generally applicable to dividends do not apply to
dividends from REITs. Applicable certification and disclosure requirements must be satisfied to be
exempt from withholding under the effectively connected income exemption. Dividends that are
effectively connected with a trade or business generally will be subject to tax on a net basis,
that is, after allowance for deductions, at graduated rates, in the same manner as U.S.
stockholders are taxed with respect to these dividends, and are generally not subject to
withholding. Any dividends received by a corporate non-U.S. stockholder that is engaged in a U.S.
trade or business also may be subject to an additional branch profits tax at a 30% rate, or lower
applicable treaty rate.
Distributions in excess of current and accumulated earnings and profits that exceed the
non-U.S. Stockholders adjusted tax basis in its common stock (as determined on a share by share
basis) will be taxable to a non-U.S. stockholder as gain from the sale of common stock, which is
discussed below. Distributions in excess of current or accumulated earnings and profits
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that do not exceed the adjusted tax basis of the non-U.S. stockholder in its common stock will
reduce the non-U.S. stockholders adjusted tax basis in its common stock and will not be subject to
U.S. federal income tax, but will be subject to U.S. withholding tax as described below.
We expect to withhold U.S. income tax at the rate of 30% on any ordinary dividend
distributions (including distributions that later may be determined to have been in excess of
current and accumulated earnings and profits) made to a non-U.S. stockholder unless: (i) a lower
treaty rate applies and the non-U.S. stockholder files an IRS Form W-8BEN evidencing eligibility
for that reduced treaty rate; or (ii) the non-U.S. stockholder files an IRS Form W-8ECI claiming
that the distribution is income effectively connected with the non-U.S. stockholders trade or
business.
We may be required to withhold at least 10% of any distribution in excess of our current and
accumulated earnings and profits, even if a lower treaty rate applies and the non-U.S. stockholder
is not liable for tax on the receipt of that distribution. Moreover, because of the uncertainty in
estimating earnings and profits, we may choose to withhold 30% on all distributions. However, a
non-U.S. stockholder may seek a refund of these amounts from the IRS if the non-U.S. stockholders
U.S. tax liability with respect to the distribution is less than the amount withheld.
Distributions to a non-U.S. stockholder that are designated at the time of the distribution as
capital gain dividends, other than those arising from the disposition of a U.S. real property
interest, generally should not be subject to U.S. federal income taxation unless: (i) the
investment in our stock is effectively connected with the non-U.S. stockholders U.S. trade or
business, in which case the non-U.S. stockholder generally will be subject to the same treatment as
U.S. stockholders with respect to any gain, except that a stockholder that is a foreign corporation
also may be subject to the 30% branch profits tax, as discussed above, or (ii) the non-U.S.
stockholder is a nonresident alien individual who is present in the United States for 183 days or
more during the taxable year and has a tax home in the United States, in which case the
nonresident alien individual will be subject to a 30% tax on the individuals capital gains.
Except as hereinafter discussed, under FIRPTA, distributions to a non-U.S. stockholder that
are attributable to gain from sales or exchanges by us of U.S. real property interests, whether or
not designated as a capital gain dividend, will cause the non-U.S. stockholder to be treated as
recognizing gain that is income effectively connected with a U.S. trade or business. Non-U.S.
stockholders generally will be taxed on this gain at the same rates applicable to U.S.
stockholders, subject to a special alternative minimum tax in the case of nonresident alien
individuals. Also, this gain may be subject to a 30% branch profits tax in the hands of a non-U.S.
stockholder that is a corporation. However, even if a distribution is attributable to a sale or
exchange of U.S. real property interests, the distribution will not be treated as gain recognized
from the sale or exchange of U.S. real property interests, but as an ordinary dividend subject to
the general withholding regime discussed above, if:
(i) the distribution is made with respect to a class of stock that is considered regularly
traded under applicable Treasury Regulations on an established securities market located in the
United States, such as the New York Stock Exchange; and
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(ii) the stockholder owns 5% or less of that class of stock at all times during the one-year
period ending on the date of the distribution.
We will be required to withhold and remit to the IRS 35% of any distributions to non-U.S.
stockholders that are, or, if greater, could have been, designated as capital gain dividends and
are attributable to gain recognized from the sale or exchange of U.S. real property interests.
Distributions can be designated as capital gains to the extent of our net capital gain for the
taxable year of the distribution. The amount withheld, which for individual non-U.S. stockholders
may substantially exceed the actual tax liability, is creditable against the non-U.S. stockholders
U.S. federal income tax liability and is refundable to the extent such amount exceeds the non-U.S.
stockholders actual U.S. federal income tax liability, and the non-U.S. stockholder timely files
an appropriate claim for refund.
Retention of Net Capital Gains. Although the law is not clear on the matter, it appears that
amounts designated as undistributed capital gains in respect of the common stock held by U.S.
stockholders generally should be treated with respect to non-U.S. stockholders in the same manner
as actual distributions by the Company of capital gain dividends. Under that approach, the non-U.S.
stockholders would be able to offset as a credit against their U.S. federal income tax liability
resulting therefrom an amount equal to their proportionate share of the tax paid by us on the
undistributed capital gains, and to receive from the IRS a refund to the extent their proportionate
share of this tax paid were to exceed their actual U.S. federal income tax liability, and the
non-U.S. stockholder timely files an appropriate claim for refund.
Sale of Common Stock. Gain recognized by a non-U.S. stockholder upon the sale, exchange or
other taxable disposition of our common stock generally will not be subject to or implicate U.S.
taxation unless:
(i) the investment in our common stock is effectively connected with the non-U.S.
stockholders U.S. trade or business, in which case the non-U.S. stockholder generally will be
subject to the same treatment as domestic stockholders with respect to any gain and a non-U.S.
stockholder that is a corporation may be subject to a 30% branch profits tax;
(ii) the non-U.S. stockholder is a nonresident alien individual who is present in the United
States for 183 days or more during the taxable year and has a tax home in the United States, in
which case the nonresident alien individual will be subject to a 30% tax on the individuals net
capital gains for the taxable year;
(iii) our common stock constitutes a U.S. real property interest within the meaning of FIRPTA,
as described below; or
(iv) our common stock is disposed of in a wash sale by a person owning more than 5% of the
common stock.
Whether Common Stock Is a U.S. Real Property Interest. Our common stock will not constitute a
U.S. real property interest if we are a domestically controlled REIT. We will be a domestically
controlled REIT if, at all times during a specified testing period, less than 50% in value of our
stock is held directly or indirectly by non-U.S. stockholders. We believe that, currently, we are a
domestically controlled REIT and, therefore, that the sale of our common
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stock would not be subject to taxation under FIRPTA. Because our common stock is publicly
traded, however, we cannot guarantee that we are or will continue to be a domestically controlled
REIT. Even if we do not qualify as a domestically controlled REIT at the time a non-U.S.
stockholder sells our common stock, gain arising from the sale still would not be subject to FIRPTA
tax if:
(i) our common is considered regularly traded under applicable Treasury regulations on an
established securities market, such as the New York Stock Exchange; and
(ii) the selling non-U.S. stockholder owned, actually or constructively, 5% or less in value
of our common stock throughout the five-year period ending on the date of the sale or exchange.
If gain on the sale or exchange of our common stock were subject to taxation under FIRPTA, the
non-U.S. stockholder would be subject to regular U.S. income tax with respect to any gain in the
same manner as a taxable U.S. stockholder, subject to any applicable alternative minimum tax and
special alternative minimum tax in the case of nonresident alien individuals.
Wash Sales. In general, a wash sale of common stock occurs if a stockholder owning more than
5% of the shares of a domestically controlled REIT (at any time during the one-year period
preceding the taxable distribution discussed in this paragraph) avoids a taxable distribution of
gain recognized from the sale or exchange of U.S. real property interests by selling common stock
before the ex-dividend date of the distribution and then, within a designated period, acquires or
enters into an option or contract to acquire common stock. If a wash sale occurs, then the
seller/repurchaser will be treated as having gain recognized from the sale or exchange of U.S. real
property interests in the same amount as if the avoided distribution had actually been received.
Information Reporting and Backup Withholding. Information reporting (to the IRS) will apply to
dividends paid on our common stock (and the amount of tax withheld, if any) and to the proceeds of
a sale or other disposition of our common stock. Backup withholding tax, at a current rate of 28%
(subject to increase to 31% after 2010) generally will not apply to payments of dividends made by
us or our paying agents to a non-U.S. stockholder or to the proceeds of a sale or other disposition
of our common stock if the holder has provided the required certification that it is not a U.S.
person (generally a properly-executed IRS Form W-8BEN).
FORWARD-LOOKING STATEMENTS
This prospectus contains
certain forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, and Section 21E of the Securities Exchange Act of 1934. We intend such
forward-looking statements to be covered by the safe harbor provisions for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995, and are including this
statement for purposes of complying with those safe harbor provisions. Forward-looking
statements, which are based on certain assumptions and describe future plans, strategies and
expectations of the Company, are generally identifiable by use of the words believe, expect, intend,
anticipate, estimate, project or similar expressions. Our ability to predict results or the
actual effect of future plans or strategies is inherently uncertain. Factors which could have an
adverse effect on our operations and future prospects include, but are not limited to, changes in:
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national, international (including trade volume growth), regional and local
economic conditions generally and real estate markets specifically; |
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legislation/regulation (including changes to laws governing the taxation of real
estate investment trusts); |
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our ability to qualify and maintain our status as a real estate investment trust; |
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availability and attractiveness of financing (including both public and private
capital) to us and to our potential counterparties; |
|
|
|
|
interest rate levels; |
|
|
|
|
our ability to maintain our current credit agency ratings, competition, supply and
demand for industrial properties (including land, the supply and demand for which is
inherently more volatile than other types of industrial property) in the Companys
current and proposed market areas; |
|
|
|
|
difficulties in consummating acquisitions and dispositions; |
|
|
|
|
risks related to our investments in properties through joint ventures; |
|
|
|
|
potential environmental liabilities; |
|
|
|
|
slippage in development or lease-up schedules; |
|
|
|
|
tenant credit risks; |
|
|
|
|
higher-than-expected costs; |
|
|
|
|
changes in general accounting principles, policies and guidelines applicable to
real estate investment trusts; |
|
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|
|
risks related to doing business internationally (including foreign currency
exchange risks and risks related to integrating international properties and
operations); and |
|
|
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|
those additional factors described under the heading Risk Factors and elsewhere
in the Companys most recent Annual Report on Form 10-K and in the Companys
subsequent Quarterly Reports on Form 10-Q. |
These risks and uncertainties should be considered in evaluating forward-looking statements
and undue reliance should not be placed on such statements. Further information concerning us and
our business, including additional factors that could materially affect our financial results, is
included elsewhere in this prospectus and in the documents we incorporate by reference, including
our most recent Annual Report on Form 10-K and other reports.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act, and in accordance
therewith, file reports, proxy statements and other information with the SEC. You may read and copy
these reports, proxy statements and other information filed with the SEC at the Public Reference
Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call 1-800-SEC-0330 for
further information on the Public Reference Room. In addition, the SEC maintains a website that
contains reports and other information regarding registrants that file electronically with the SEC
at www.sec.gov. We also make available free of charge through our website our Annual Report on
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as well as our
definitive proxy statement and Section 16 reports on Forms 3, 4 and 5. Our Internet website
address is www.firstindustrial.com. The information on or linked to our website is not a part of,
and is not incorporated by reference into, this prospectus or incorporated into any other filings
that we make with the SEC.
Our common stock is listed on the NYSE and our filings with the SEC can also be inspected and
copied at the offices of the NYSE located at 20 Broad Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
We incorporate by reference information we file with the SEC, which means that we can disclose
important information to you by referring you to those documents. The information
40
incorporated by reference is an important part of this prospectus and more recent information
automatically updates and supersedes more dated information contained or incorporated by reference
in this prospectus. The Company (file no. 1-13102) filed the following documents with the SEC and
incorporates them by reference into this prospectus:
|
|
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Annual Report on Form 10-K for the year ended December 31, 2007; |
|
|
|
|
Quarterly Report on Form 10-Q for the quarter ended March 31, 2008; and |
|
|
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Current Reports on Form 8-K filed on May 20, 2008 and July 2, 2008. |
All documents filed by the Company under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this prospectus and prior to the termination of this offering shall be
deemed to be incorporated by reference in this prospectus and made a part hereof from the date of
the filing of such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement contained herein (in the case of a
previously filed document incorporated or deemed to be incorporated by reference herein) or in any
other document subsequently filed with the SEC which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed to constitute a part of this prospectus except as so modified or
superseded.
We will provide, without charge, to each person to whom this prospectus is delivered a copy of
these filings upon written or oral request to First Industrial Realty Trust, Inc., 311 S. Wacker
Drive, Suite 4000, Chicago, Illinois 60606, Attention: Investor Relations, telephone number (312)
344-4300.
EXPERTS
The financial statements and managements assessment of the effectiveness of internal control
over financial reporting (which is included in Managements Report on Internal Control over
Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K
for the year ended December 31, 2007 have been so
incorporated in reliance on the reports of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters will be passed upon for us by Barack Ferrazzano Kirschbaum & Nagelberg
LLP, Chicago, Illinois. Barack Ferrazzano Kirschbaum & Nagelberg LLP will rely as to all matters
of Maryland law on the opinion of McGuireWoods LLP, Baltimore, Maryland.
41
FIRST INDUSTRIAL REALTY TRUST, INC.
DIVIDEND REINVESTMENT AND
DIRECT STOCK PURCHASE PLAN
5,000,000 Shares
Common Stock
PROSPECTUS
August 8, 2008
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of costs and expenses to be paid by the registrant
in connection with the distribution of the securities being registered by this registration
statement. All of the amounts shown are estimates, except the SEC
registration fee and the NYSE listing fee:
|
|
|
|
|
SEC Registration Fee |
|
$ |
4,621.68 |
|
NYSE Listing Fee |
|
|
5,000.00 |
|
Legal Fees and Expenses |
|
|
225,000.00 |
|
Transfer Agent Fees |
|
|
8,000.00 |
|
Accounting Fees and Expenses |
|
|
25,000.00 |
|
Printing and Engraving Expenses |
|
|
28,500.00 |
|
Miscellaneous |
|
|
878.32 |
|
Total |
|
$ |
297,000.00 |
|
|
|
|
|
Item 15. Indemnification of Directors and Officers
The Articles of Amendment and Restatement of the registrant contain certain provisions
limiting the liability of the directors and officers to the fullest extent permitted by
Section 5-418 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland
(Courts and Judicial Proceedings Article). The registrants Articles of Amendment and Restatement
and amended and restated bylaws also provide certain limitations, permitted under Maryland General
Corporation Law (the MGCL), on each directors personal liability for monetary damages for breach
of any duty as a director. Section 5-418 of the Courts and Judicial Proceedings Article permits a
Maryland corporation to limit the liability of its directors and officers to the corporation and
its stockholders for money damages, except to the extent that: (a) it is proved that the director
or officer actually received an improper benefit or profit in money, property or services for the
amount of the benefit or profit in money, property, or services actually received or (b) a judgment
or other final adjudication is entered in a proceeding based on a finding that the act, or failure
to act, of the director or officer was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding.
In addition, the registrants Articles of Amendment and Restatement and amended and restated
bylaws obligate the registrant to indemnify its directors and officers, and permit the Company to
indemnify its employees and other agents, against certain liabilities and expenses incurred in
connection with their service in such capacities, as well as advancement of costs, expenses and
attorneys fees, to the fullest extent permitted under the MGCL. Section 2-418 of the MGCL permits
a Maryland corporation to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses actually incurred by the
directors or officers in connection with any proceeding to which they may be made a party by reason
of their service in such capacities, unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to such 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 directors and officers of the registrant are entitled to the benefits of liability
insurance maintained by the registrant for certain losses arising from claims or charges made
against any officer or director in connection with his or her service in such capacity.
II-1
The Eleventh Amended and Restated Agreement of Limited Partnership of First Industrial, L.P.
contains provisions indemnifying the registrant and its officers, directors and stockholders to the
fullest extent permitted by the Delaware Revised Uniform Limited Partnership Act.
Item 16. Exhibits
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Exhibits |
|
Description |
|
|
|
|
4.1
|
|
Articles of Amendment and Restatement of the Company (incorporated
by reference to Exhibit 3.1 of the Form 10-Q of the Company for the
fiscal quarter ended June 30, 1996, File No. 1-13102) |
|
|
|
4.2
|
|
Amended and Restated Bylaws of the Company, dated September 4, 1997
(incorporated by reference to Exhibit 1 of the Companys Form 8-K,
dated September 4, 1997, as filed on September 29, 1997, File No.
1-13102) |
|
|
|
4.3
|
|
Articles of Amendment to the Companys Articles of Amendment and
Restatement, dated June 20, 1994 (incorporated by reference to
Exhibit 3.2 of the Form 10-Q of the Company for the fiscal quarter
ended June 30, 1996, File No. 1-13102) |
|
|
|
4.4
|
|
Articles of Amendment to the Companys Articles of Amendment and
Restatement, dated May 31, 1996 (incorporated by reference to
Exhibit 3.3 of the Form 10-Q of the Company for the fiscal quarter
ended June 30, 1996, File No. 1-13102) |
|
|
|
4.5
|
|
Registration Rights Agreement, dated as of March 19, 2001, among
First Industrial, L.P. and Credit Suisse First Boston Corporation,
Chase Securities, Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Salomon Smith Barney, Inc., Banc of America Securities
LLC, Banc One Capital Markets, Inc. and UBS Warburg LLC
(incorporated by reference to Exhibit 4.17 of First Industrial,
L.P.s Annual Report on Form 10-K for the year ended December 31,
2000, File No. 333-21873) |
|
|
|
4.6
|
|
Registration Rights Agreement dated September 25, 2006 among the
Company, First Industrial, L.P. and the Initial Purchasers named
therein (incorporated by reference to Exhibit 10.1 of the current
report on Form 8-K of First Industrial, L.P. dated September 25,
2006, File No. 333-21873) |
|
|
|
4.7
|
|
Registration Rights Agreement, dated April 29, 1998, relating to the
Companys Common Stock, par value $0.01 per share, between the
Company, the Operating Partnership and Merrill Lynch, Pierce, Fenner
& Smith Incorporated (incorporated by reference to Exhibit 4.1 of
the Form 8-K of the Company dated May 1, 1998, File No. 1-13102) |
|
|
|
5.1*
|
|
Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP |
|
|
|
5.2*
|
|
Opinion of McGuireWoods LLP |
|
|
|
8.1*
|
|
Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP |
|
|
|
23.1*
|
|
Consent of PricewaterhouseCoopers LLP |
|
|
|
23.2*
|
|
Consent of Barack Ferrazzano Kirschbaum & Nagelberg LLP (included in Exhibits 5.1 and 8.1) |
|
|
|
23.3*
|
|
Consent of McGuireWoods LLP (included in Exhibit 5.2) |
|
|
|
24.1*
|
|
Power of Attorney (included on the signature pages hereto) |
|
|
|
99.1*
|
|
Form of Letter to Investors |
|
|
|
99.2*
|
|
Direct Stock Purchase Plan Enrollment Form |
|
|
|
99.3*
|
|
Direct Stock Purchase Plan Initial Enrollment Form |
|
|
|
99.4*
|
|
Request for Waiver |
II-2
Item 17. 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) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent 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), (a)(1)(ii) and (a)(1)(iii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective
II-3
date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such
effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
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 Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
II-4
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-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Chicago, state of Illinois,
on August 8, 2008.
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|
FIRST INDUSTRIAL REALTY TRUST, INC.
|
|
|
By: |
/s/ Michael J. Havala
|
|
|
|
Michael J. Havala |
|
|
|
Chief Financial Officer |
|
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Michael W. Brennan and Michael J. Havala, and each of them (with full
power to each of them to act alone), his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement on Form S-3, to sign any and all post-effective
amendments to this Registration Statement on Form S-3 and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection with such matters, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons on behalf of the registrant in the capacities and on the dates
indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
/s/ Michael W. Brennan
Michael W. Brennan |
|
President, Chief Executive Officer and
Director (Principal Executive Officer)
|
|
June 30, 2008
|
/s/ Michael J. Havala
Michael J. Havala |
|
Chief Financial Officer
(Principal Financial Officer)
|
|
June 30, 2008
|
/s/ Scott A. Musil
Scott A. Musil |
|
Chief Accounting Officer
(Principal Accounting Officer)
|
|
June 30, 2008
|
/s/ Jay H. Shidler
Jay H. Shidler |
|
Director
|
|
June 30, 2008
|
II-5
|
|
|
|
|
Signature |
|
Title |
|
Date |
/s/ John Brenninkmeijer
John Brenninkmeijer |
|
Director
|
|
June 30, 2008
|
/s/ Michael G. Damone
Michael G. Damone |
|
Director
|
|
June 30, 2008
|
/s/ Kevin W. Lynch
Kevin W. Lynch |
|
Director
|
|
June 30, 2008
|
/s/ Robert D. Newman
Robert D. Newman |
|
Director
|
|
June 30, 2008
|
/s/ John E. Rau
John E. Rau |
|
Director
|
|
June 30, 2008
|
/s/ Robert J. Slater
Robert J. Slater |
|
Director
|
|
June 30, 2008
|
/s/ W. Edwin Tyler
W. Edwin Tyler |
|
Director
|
|
June 30, 2008
|
/s/ J. Steven Wilson
J. Steven Wilson |
|
Director
|
|
June 30, 2008
|
II-6
EXHIBITS INDEX
|
|
|
Exhibits |
|
Description |
|
|
|
|
4.1
|
|
Articles of Amendment and Restatement of the Company (incorporated
by reference to Exhibit 3.1 of the Form 10-Q of the Company for the
fiscal quarter ended June 30, 1996, File No. 1-13102) |
|
|
|
4.2
|
|
Amended and Restated Bylaws of the Company, dated September 4, 1997
(incorporated by reference to Exhibit 1 of the Companys Form 8-K,
dated September 4, 1997, as filed on September 29, 1997, File No.
1-13102) |
|
|
|
4.3
|
|
Articles of Amendment to the Companys Articles of Amendment and
Restatement, dated June 20, 1994 (incorporated by reference to
Exhibit 3.2 of the Form 10-Q of the Company for the fiscal quarter
ended June 30, 1996, File No. 1-13102) |
|
|
|
4.4
|
|
Articles of Amendment to the Companys Articles of Amendment and
Restatement, dated May 31, 1996 (incorporated by reference to
Exhibit 3.3 of the Form 10-Q of the Company for the fiscal quarter
ended June 30, 1996, File No. 1-13102) |
|
|
|
4.5
|
|
Registration Rights Agreement, dated as of March 19, 2001, among
First Industrial, L.P. and Credit Suisse First Boston Corporation,
Chase Securities, Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Salomon Smith Barney, Inc., Banc of America Securities
LLC, Banc One Capital Markets, Inc. and UBS Warburg LLC
(incorporated by reference to Exhibit 4.17 of First Industrial,
L.P.s Annual Report on Form 10-K for the year ended December 31,
2000, File No. 333-21873) |
|
|
|
4.6
|
|
Registration Rights Agreement dated September 25, 2006 among the
Company, First Industrial, L.P. and the Initial Purchasers named
therein (incorporated by reference to Exhibit 10.1 of the current
report on Form 8-K of First Industrial, L.P. dated September 25,
2006, File No. 333-21873) |
|
|
|
4.7
|
|
Registration Rights Agreement, dated April 29, 1998, relating to the
Companys Common Stock, par value $0.01 per share, between the
Company, the Operating Partnership and Merrill Lynch, Pierce, Fenner
& Smith Incorporated (incorporated by reference to Exhibit 4.1 of
the Form 8-K of the Company dated May 1, 1998, File No. 1-13102) |
|
|
|
5.1*
|
|
Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP |
|
|
|
5.2*
|
|
Opinion of McGuireWoods LLP |
|
|
|
8.1*
|
|
Opinion of Barack Ferrazzano Kirschbaum & Nagelberg LLP |
|
|
|
23.1*
|
|
Consent of PricewaterhouseCoopers LLP |
|
|
|
23.2*
|
|
Consent of Barack Ferrazzano Kirschbaum & Nagelberg LLP (included in Exhibits 5.1 and 8.1) |
|
|
|
23.3*
|
|
Consent of McGuireWoods LLP (included in Exhibit 5.2) |
|
|
|
24.1*
|
|
Power of Attorney (included on the signature pages hereto) |
|
|
|
99.1*
|
|
Form of Letter to Investors |
|
|
|
99.2*
|
|
Direct Stock Purchase Plan Enrollment Form |
|
|
|
99.3*
|
|
Direct Stock Purchase Plan Initial Enrollment Form |
|
|
|
99.4*
|
|
Request for Waiver |
II-7