As filed with the Securities and Exchange Commission on May 3, 2010		Registration No. 333-

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

FIRST INDUSTRIAL REALTY TRUST, INC.

(Exact name of Registrant as specified in its charter)

Maryland		36-3935116
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

311 S. Wacker Drive, Suite 3900
Chicago, Illinois 60606
(Address of principal executive offices)

FIRST INDUSTRIAL REALTY TRUST, INC.
2009 STOCK INCENTIVE PLAN
(Full title of the plan)

Bruce W. Duncan		Copies to:
President and Chief Executive Officer First Industrial Realty Trust, Inc. 311 S. Wacker Drive, Suite 3900 Chicago, Illinois, 60606 (312) 344-4300 (Name of agent for service)		Howard A. Nagelberg William E. Turner II Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 W. Madison St., Suite 3900 Chicago, Illinois, 60606 (312) 984-3100

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.

Large accelerated filer o		Accelerated filer þ		Non-accelerated filer o (Do not check if a smaller reporting company)		Smaller reporting company o

Proposed Maximum

Proposed Maximum

Title of Securities

Amount to be

Offering Price

Aggregate

Amount of

to be Registered

Registered(1)(2)

per Share(2)

Offering Price(1)(2)

Registration Fee(2)

Common Stock, par value $0.01 per share, issuable under 2009 Stock Incentive Plan

400,000 shares

$

8.08

$

3,232,000

$

231

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

     The information specified in this Part I of Form S-8 (plan information and registrant information and employee plan annual information) is included in documents sent or given to the participants in the plan as specified by Rule 428(b)(1) under the Securities Act of 1933. Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.

     These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 3. Incorporation of Certain Documents by Reference.

     The following documents previously or concurrently filed (file no. 1-13102) by First Industrial Realty Trust, Inc. (the “Company”) with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference into this Registration Statement:

	(a)		The Company’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on March 3, 2010;
	(b)		The Company’s Current Reports on Form 8-K filed January 11, 2010, February 3, 2010 and March 4, 2010 (in each case, excluding the portions that were furnished and not filed in accordance with Commission rules); and
	(c)		The description of the Company’s common stock included in the Company’s registration statement on Form 8-A dated June 23, 1994.

     All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents, except that we are not incorporating, in each case, any documents or information deemed to have been furnished and not filed in accordance with Commission rules. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus which is a part hereof (the “Prospectus”) to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement and the Prospectus.

     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 3900, Chicago, Illinois 60606, Attention: Investor Relations, telephone number (312) 344-4300.

Item 4. Description of Securities.

     Not Applicable.

Item 5. Interests of Named Experts and Counsel.

     Not applicable.

Item 6. Indemnification of Directors and Officers.

     The Articles of Amendment and Restatement of the Company 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 registrant’s Articles of Amendment and Restatement and amended and restated bylaws also provide certain limitations, permitted under Maryland General Corporation Law (the “MGCL”), on each director’s 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 Company’s 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.

Item 7. Exemption from Registration Claimed.

     Not Applicable.

Item 8. Exhibits.

     The following is a complete list of exhibits filed or incorporated by reference as part of this registration statement:

Exhibit No.		Description
4.1		Amended and Restated Articles of Incorporation 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)
4.2		Amended and Restated Bylaws of the Company, dated September 4, 1997 (incorporated by reference to Exhibit 1 of the Company’s Form 8-K, dated September 4, 1997, as filed on September 29, 1997)
4.3		Articles of Amendment to the Company’s Articles of Incorporation, 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)
4.4		Articles of Amendment to the Company’s Articles of Incorporation, 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)
4.5		Articles Supplementary relating to the Company’s 6.236% Series F Flexible Cumulative Redeemable Preferred Stock, $0.01 par value (incorporated by reference to Exhibit 3.1 of the Form 10-Q of the Company for the fiscal quarter ended June 30, 2004)

Exhibit No.		Description
4.6		Articles Supplementary relating to the Company’s 7.236% Series G Flexible Cumulative Redeemable Preferred Stock, $0.01 par value (incorporated by reference to Exhibit 3.2 of the Form 10-Q of the Company for the fiscal quarter ended June 30, 2004)
4.7		Articles Supplementary relating to the Company’s Junior Participating Preferred Stock, $0.01 par value (incorporated by reference to Exhibit 4.10 of Form S-3 of the Company and First Industrial, L.P. dated September 24, 1997, Registration No. 333-29879)
4.8		Articles Supplementary relating to the Company’s 7.25% Series J Cumulative Redeemable Preferred Stock, $0.01 par value (incorporated by reference to Exhibit 4.1 of the Form 8-K of the Company filed January 17, 2006)
4.9		Articles Supplementary relating to the Company’s 7.25% Series K Cumulative Redeemable Preferred Stock, $0.01 par value (incorporated by reference to Exhibit 1.6 of the Form 8-A of the Company, as filed on August 18, 2006)
4.10		Indenture, dated as of May 13, 1997, between First Industrial, L.P. and First Trust National Association, as Trustee (incorporated by reference to Exhibit 4.1 of Form 10-Q of First Industrial Realty Trust, Inc. for the fiscal quarter ended March 31, 1997, as amended by Form 10-Q/A No. 1 of First Industrial Realty Trust, Inc. filed May 30, 1997)
4.11		Form of Senior Debt Security of First Industrial, L.P. (included in Exhibit 4.10)
4.12		2009 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Form 10-Q for the period ended June 30, 2009)
5.1		Opinion of McGuireWoods LLP
23.1		Consent of PricewaterhouseCoopers LLP
23.2		Consent of McGuireWoods LLP (included in Exhibit 5.1)
24.1		Powers of Attorney (included on signature page)

Item 9. Undertakings.

     (a) The undersigned registrant hereby undertakes:

(1)

To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement:

	(i)		to include any prospectus required by Section 10(a)(3) of the Securities Act;
	(ii)		to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement, except that, 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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

	(iii)		to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in the registration statement;
	provided, however, that provisions (i) and (ii) of this undertaking are inapplicable if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Sections 13 or 15(d) of the Exchange Act that are incorporated by reference in this registration statement;

     (2) That, for the purpose of determining any liability under the Securities Act, 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.

     (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     (h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 of expenses incurred or paid by a director, officer or controlling person 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.

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 of filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunder duly authorized, in the City of Chicago, State of Illinois, on May 3, 2010.

POWERS OF ATTORNEY

     Know all men by these presents, that each person whose signature appears below constitutes and appoints Bruce W. Duncan and Scott A. Musil, and each of them, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, 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 was signed by the following persons in the capacities indicated on May 3, 2010.

Signature		Title		Date
/s/ Bruce W. Duncan   Bruce W. Duncan		President, Chief Executive Officer and Director (Principal Executive Officer)		May 3, 2010
/s/ Scott A. Musil   Scott A. Musil		Acting Chief Financial Officer and Chief Accounting Officer (Principal Financial and Accounting Officer)		May 3, 2010
/s/ W. Edwin Tyler   W. Edwin Tyler		Chairman of the Board of Directors		May 3, 2010
/s/ Michael G. Damone   Michael G. Damone		Director		May 3, 2010
/s/ Matthew S. Dominski   Matthew S. Dominski		Director		May 3, 2010
/s/ H. Patrick Hackett, Jr.   H. Patrick Hackett, Jr.		Director		May 3, 2010
/s/ Kevin W. Lynch   Kevin W. Lynch		Director		May 3, 2010
/s/ John E. Rau   John E. Rau		Director		May 3, 2010
/s/ Jay H. Shidler   Jay H. Shidler		Director		May 3, 2010
/s/ Robert J. Slater   Robert J. Slater		Director		May 3, 2010
/s/ J. Steven Wilson   J. Steven Wilson		Director		May 3, 2010

FIRST INDUSTRIAL REALTY TRUST, INC.

EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT

				Incorporated
				Herein by		Filed
Exhibit No.		Description		Reference to		Herewith
4.1		Amended and Restated Articles of Incorporation of the Company		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		Exhibit 1 of the Company’s Form 8-K, dated September 4, 1997, as filed on September 29, 1997, File No. 1-13102
4.3		Articles of Amendment to the Company’s Articles of Incorporation, dated June 20, 1994		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 Company’s Articles of Incorporation, dated May 31, 1996		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		Articles Supplementary relating to the Company’s 6.236% Series F Flexible Cumulative Redeemable Preferred Stock, $0.01 par value		Exhibit 3.1 of the Form 10-Q of the Company for the fiscal quarter ended June 30, 2004, File No. 1-13102
4.6		Articles Supplementary relating to the Company’s 7.236% Series G Flexible Cumulative Redeemable Preferred Stock, $0.01 par value		Exhibit 3.2 of the Form 10-Q of the Company for the fiscal quarter ended June 30, 2004, File No. 1-13102
4.7		Articles Supplementary relating to the Company’s Junior Participating Preferred Stock, $0.01 par value		Exhibit 4.10 of the Form S-3 of the Company and First Industrial, L.P. dated September 27, 1997, Registration No. 333-29879

				Incorporated
				Herein by		Filed
Exhibit No.		Description		Reference to		Herewith
4.8		Articles Supplementary relating to the Company’s 7.25% Series J Cumulative Redeemable Preferred Stock, $0.01 par value		Exhibit 4.1 of the Form 8-A of the Company filed January 17, 2006, File No. 1-13102
4.9		Articles Supplementary relating to the Company’s 7.25% Series K Cumulative Redeemable Preferred Stock, $0.01 par value		Exhibit 1.6 of the Form 8-A of the Company as filed on August 18, 2006, File No. 1-13102
4.10		Indenture, dated as of May 13, 1997, between First Industrial, L.P. and First Trust National Association, as Trustee		Exhibit 4.1 of the Form 10-Q of First Industrial Realty Trust, Inc. for the fiscal quarter ended March 31, 1997, as amended by Form 10-Q/A No. 1 of First Industrial Realty Trust, Inc. filed May 30, 1997, File No. 1-13102
4.11		Form of Senior Debt Security of First Industrial , L.P.		Included in Exhibit 4.10
4.12		2009 Stock Incentive Plan		Exhibit 10.1 of the Form 10-Q of the Company for the period ended June 30, 2009, File No. 1-13102
5.1		Opinion of McGuireWoods LLP				X
23.1		Consent of PricewaterhouseCoopers LLP				X
23.2		Consent of McGuireWoods LLP				Included in Exhibit 5.1
24.1		Powers of Attorney				Included on the Signature Page to this Registration Statement

EXHIBIT 5.1

Direct: 410.659.4509		Direct Fax: 410.659.4599

May 3, 2010

First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 3900
Chicago, Illinois 60606

Ladies and Gentlemen:

     This opinion is furnished in our capacity as special Maryland counsel for First Industrial Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with the filing by the Company with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-8 (which, together with any prospectus and any prospectus supplement relating thereto (collectively, the “Prospectus”) shall hereinafter be referred to collectively as the “Registration Statement”), pursuant to the Securities Act of 1933, as amended (the “Securities Act”), for the purpose of registering 400,000 shares of common stock of the Company, par value $.01 per share (collectively, the “Securities”), to be offered from time to time by the Company on the terms provided in the Registration Statement, including without limitation, the 2009 Stock Incentive Plan referenced therein (the “Plan”). Terms used but not defined herein shall have the meanings given to them in the Registration Statement.

     In connection therewith, we have examined, among other things, originals or copies, certified or otherwise identified to our satisfaction, of the following:

	(a)		Articles of Amendment and Restatement of the Company filed with the State Department of Assessments and Taxation of Maryland (the “SDAT”) on June 13, 1994, as amended to date (the “Charter”);
	(b)		Amended and Restated Bylaws of the Company, as amended to date;
	(c)		records of proceedings of the Board of Directors of the Company, including those certain resolutions adopted February 25, 2009 by the Board of Directors of the Company (collectively, the “Authorizing Resolutions”);
	(d)		Certificate of Status for the Company issued by the SDAT dated May 3, 2010; and
	(e)		the Registration Statement.

     With respect to the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as certified or reproduced copies. We have not independently verified any factual matters or reviewed any documents other than the documents referred to above and accordingly we do not express any opinion as to matters that might have been disclosed by independent verification or review. As to matters of fact that have

First Industrial Realty Trust, Inc.
May 3, 2010
Page 2

not been independently established, we have relied upon representations of officers of the Company.

     We have further assumed that (i) prior to issuance of the Securities, valid consideration for the Securities has been received in full in accordance with the Plan and the requirements of the committee in granting awards under the Plan; (ii) to the extent that any Securities are being issued in exchange or upon exercise or conversion of any other securities, including any such securities and awards granted under the Plan, the requirements of clause (i) of this sentence shall have been satisfied as to the issuance of such other securities; (iii) the Registration Statement will have become effective; and (iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws.

     We are attorneys admitted to practice in the State of Maryland. We express no opinion concerning the laws of any jurisdictions other than the laws of the United States of America and the State of Maryland.

     Based upon the foregoing, we are of the opinion that the Securities, when issued as described in the Registration Statement and the Plan, are duly authorized, validly issued, fully-paid and non-assessable.

     The foregoing assumes that all requisite steps will be taken to comply with the requirements of the Securities Act and applicable requirements of state laws regulating the offer and sale of securities, and that additional action will be taken by the Company to effect the issuance or acquisition of the Securities and recordation of such issuance on the books of the Company.

     We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Our consent to such reference does not constitute a consent under Section 7 of the Securities Act and in consenting to such reference we have not certified any part of the Registration Statement and do not otherwise come within the categories of persons whose consent is required under Section 7 or under the rules and regulations of the Securities and Exchange Commission thereunder.

Very truly yours,

/s/ McGuireWoods LLP

McGuireWoods LLP

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 1, 2010 relating to the consolidated financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in First Industrial Realty Trust, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2009.

/s/ PricewaterhouseCoopers LLP

Chicago, IL
April 29, 2010