View:
As filed with the Securities and Exchange Commission on October 1, 1996
Registration No. 333-
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), 1996
Maryland 36-3935116
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
150 N. Wacker Drive, Suite 150
Chicago, Illinois 60606
(312) 704-9000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Michael T. Tomasz
President and Chief Executive Officer
First Industrial Realty Trust, Inc.
150 N. Wacker Drive, Suite 150
Chicago, Illinois 60606
(312) 704-9000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Gerald S. Tanenbaum, Esq. James M. Asher, Esq.
Roger Andrus, Esq. Robert E. King, Jr., Esq.
Cahill Gordon & Reindel Rogers & Wells
80 Pine Street 200 Park Avenue
New York, New York 10005 New York, New York 10167
(212) 701-3000 (212) 878-8000
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: |_|
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: |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
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. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
==============================================================================
Title of Securities Proposed Maximum Amount of
to be Registered Aggregate Offering Price(1) Registration Fee
- ------------------------------------------------------------------------------
Common Stock, par value $200,000,000 $68,966
$0.01 per share
==============================================================================
(1) There is hereby registered an indeterminate number of shares of Common
Stock with a maximum aggregate offering price which will not exceed
$200,000,000.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, this
Registration Statement contains a combined prospectus that also relates to
$36,150,000 of Common Stock registered on Form S-3, File No. 33-80829, which was
declared effective on January 10, 1996 (the "Previously Registered Securities"),
which have not been offered or sold as of the date of the filing of this
Registration Statement. This Registration Statement constitutes Post-Effective
Amendment No. 1 to Registration Statement File No. 33-80829, pursuant to which
the total amount of unsold Previously Registered Securities registered on
Registration Statement File No. 33-80829 may be offered and sold as Common
Stock. In the event the Previously Registered Securities are offered and sold
prior to the effective date of this Registration Statement, the amount of
Previously Registered Securities so sold will not be included in the prospectus
hereunder.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED OCTOBER 1, 1996
PROSPECTUS
First Industrial Realty Trust, Inc.
Common Stock
--------------------
First Industrial Realty Trust, Inc. ("First Industrial" or the
"Company") may offer from time to time shares of its common stock, par value
$.01 per share (the "Common Stock"), with an aggregate public offering price of
up to $236,150,000 on terms to be determined at the time of offering. The Common
Stock may be offered at prices and on terms to be set forth in one or more
supplements to this Prospectus (each a "Prospectus Supplement").
The Common Stock may be offered by the Company directly to one or more
purchasers, through agents designated from time to time by the Company or to or
through underwriters or dealers. If any agents or underwriters are involved in
the sale of any of the Common Stock, their names, and any applicable purchase
price, fee, commission or discount arrangement between or among them, will be
set forth, or will be calculable from the information set forth, in an
accompanying Prospectus Supplement. See "Plan of Distribution." No Common Stock
may be sold by the Company through agents, underwriters or dealers without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such Common Stock.
For a discussion of certain factors that should be considered in
connection with an investment in the Common Stock, see "Risk Factors" commencing
on page 4.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
--------------------
The date of this Prospectus is , 1996
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices
of the Commission at 7 World Trade Center, 13th Floor, New York, New York 10048
and at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material also can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C 20549 at prescribed rates. In addition, the Commission maintains
a Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
at http://www.sec.gov. Securities of the Company are listed on the New York
Stock Exchange (the "NYSE"), and all such material filed by the Company with the
NYSE also can be inspected at the offices of the NYSE, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (together with all amendments and exhibits, the "Registration
Statement"), of which this Prospectus is a part, under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Common Stock. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information concerning the Company
and the Common Stock, reference is made to the Registration Statement.
Statements contained in this Prospectus as to the contents of any contract or
other documents are not necessarily complete, and in each instance, reference is
made to the copy of such contract or documents filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company (File No.
1-13102) with the Commission are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1996; and
(c) the Company's Current Report on Form 8-K dated March 20, 1996, as
amended by Form 8-K/A No. 1 filed May 17, 1996; and
(d) the description of the Common Stock included in the Company's
Registration Statement on Form 8-A, dated June 23, 1994.
All documents filed by the Company pursuant to 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 the offering of the Common Stock offered hereby 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 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 or in any other document subsequently
filed with the Commission which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
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statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any or all of the information incorporated by
reference herein (not including the exhibits to the information that is
incorporated by reference herein, unless such exhibits are specifically
incorporated by reference into the information that is incorporated by reference
herein). Requests for such copies should be directed to: First Industrial Realty
Trust, Inc., Attn: Michael J. Havala, Secretary, 150 N. Wacker Drive, Suite 150,
Chicago, Illinois 60606, telephone (312) 704-9000.
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THE COMPANY
The Company is a real estate investment trust ("REIT") which owns,
manages, acquires and develops bulk warehouse and light industrial properties.
Markets in which the Company currently operates include: Chicago, Illinois;
Detroit, Michigan; Minneapolis/St. Paul, Minnesota; Atlanta, Georgia; Grand
Rapids, Michigan; Central Pennsylvania; Indianapolis, Indiana; St. Louis,
Missouri; Nashville, Tennessee; Cincinnati, Ohio; Des Moines, Iowa; Milwaukee,
Wisconsin; and Dayton and Columbus, Ohio. As of June 30, 1996, the Company owned
320 in service properties containing an aggregate of approximately 28.3 million
square feet of gross leasable area ("GLA") which was approximately 96% leased to
more than 860 tenants. First Industrial is a self-administered and fully
integrated industrial real estate company.
The Company was incorporated in Maryland on August 10, 1993. The
Company's executive offices are located at 150 N. Wacker Drive, Suite 150,
Chicago, Illinois 60606, and its telephone number is (312) 704-9000.
RISK FACTORS
In evaluating an investment in Common Stock, investors should consider
the following factors, in addition to other matters set forth or incorporated in
this Prospectus and in any applicable Prospectus Supplement.
Real Estate Investment Considerations
General
Income from real property investments, and the Company's resulting
ability to make expected distributions to stockholders, may be adversely
affected by the general economic climate, local conditions such as oversupply or
a reduction in demand in the area, the attractiveness of the properties to
tenants, tenant defaults, zoning or other regulatory restrictions, competition
from other available real estate, the ability of the Company to provide adequate
maintenance and insurance and increased operating costs (including insurance
premiums and real estate taxes). The Company's income would also be adversely
affected if tenants were unable to pay rent or the Company were unable to rent
properties on favorable terms. In addition, certain expenditures associated with
real estate investment (such as real estate taxes and maintenance costs)
generally are not reduced when circumstances cause a reduction in income from
the investment. Furthermore, real estate investments are relatively illiquid
and, therefore, will tend to limit the ability of the Company to vary its
portfolio promptly in response to changes in economic or other conditions.
Renewal of Leases and Reletting of Space
The Company will be subject to the risks that, upon expiration of
leases, the leases may not be renewed, the space subject to such leases may not
be relet or the terms of renewal or reletting (including the cost of required
renovations) may be less favorable than expiring lease terms. If the Company
were unable promptly to renew a significant number of expiring leases or
promptly to relet the space covered by such leases, or if the rental rates upon
such renewal or reletting were significantly lower than the then current rates,
the Company's funds from operations and ability to make expected distributions
to stockholders might be adversely affected. Leases with respect to
approximately 2.4 million, 4.0 million and 4.9 million square feet of GLA expire
between June 30 and December 31, 1996, in 1997 and in 1998, respectively.
Potential Environmental Liability
Under various federal, state and local laws, ordinances and
regulations, an owner or operator of real estate may be liable for the costs of
clean-up of certain conditions relating to the presence of hazardous or toxic
materials on, in or emanating from the property, and any related damages to
natural resources. Such laws often impose
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liability without regard to whether the owner knew of, or was responsible for,
the presence of hazardous or toxic materials. The presence of such materials, or
the failure to address such conditions properly, may adversely affect the
ability to rent or sell the property or to borrow using the property as
collateral. Persons who dispose of or arrange for the disposal or treatment of
hazardous or toxic materials may also be liable for the costs of clean-up of
such materials, or for related natural resource damages, at or from an off-site
disposal or treatment facility, whether or not such facility is owned or
operated by such persons. No assurance can be given that existing environmental
assessments with respect to any of the Company's properties reveal all
environmental liabilities, that any prior owner or operator of any of the
properties did not create any material environmental condition not known to the
Company or that a material environmental condition does not otherwise exist as
to any one or more properties.
Tax Risks
Consequences of Failure to Qualify as a REIT
The Company intends to operate so as to qualify as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code"). Although the Company
believes that it is organized and will operate in a manner so as to qualify as a
REIT, qualification as a REIT involves the satisfaction of numerous requirements
(some of which must be met on a recurring basis) established under highly
technical and complex Code provisions of which there are only limited judicial
or administrative interpretations, and involves the determination of various
factual matters and circumstances not entirely within the Company's control. If
the Company were to fail to qualify as a REIT in any taxable year, the Company
would be subject to federal income tax (including any applicable alternative
minimum tax) on its taxable income at corporate rates and, unless entitled to
relief under certain statutory provisions, the Company also would be
disqualified from treatment as a REIT for the four taxable years that follow.
See "Certain Federal Income Tax Considerations."
Effect of Distribution Requirements
The Company could, in certain instances, have taxable income without
sufficient cash to enable the Company to meet the distribution requirements of
the REIT provisions of the Code. Accordingly, the Company could be required to
borrow funds or sell properties on adverse terms in order to meet such
distribution requirements. In addition, because the Company must distribute to
its stockholders at least 95% of its REIT taxable income each year, the
Company's ability to accumulate capital may be limited. Thus, it may be more
dependent on outside sources of financing, such as debt financing or issuances
of additional capital stock, in connection with future acquisitions. See
"Certain Federal Income Tax Considerations."
Consequences of Failure to Qualify as Partnerships
The Company expects that the partnerships in which it has interests
will be treated as partnerships for federal income tax purposes under the Code.
If any of such entities fails to qualify for treatment as such under the Code,
the Company would cease to qualify as a REIT. See " -- Consequences of Failure
to Qualify as a REIT" and "Certain Federal Income Tax Considerations."
Risks Associated with Debt Financing and Leverage
Where possible, the Company intends to continue to use leverage to
increase the rate of return on its investments and to allow the Company to make
more investments than it otherwise could. Such use of leverage presents an
additional element of risk in the event that the cash flow from the Company's
properties is insufficient to meet both debt payment obligations and the
distribution requirements of the REIT provisions of the Code.
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Balloon Payments
The Company is required to make lump-sum or "balloon" payments
pursuant to the terms of certain of its indebtedness, including a $150 million
collateralized revolving credit facility (the "Acquisition Facility") under
which the Company, through two of its subsidiaries, First Industrial, L.P. (the
"Operating Partnership") and First Industrial Pennsylvania, L.P., may borrow to
finance the acquisition of additional properties and for other corporate
purposes, including working capital, and a mortgage loan under which First
Industrial Financing Partnership, L.P. (the "Financing Partnership") borrowed
$300 million (the "Mortgage Loan"). The Acquisition Facility and the Mortgage
Loan provide for the repayment of principal in a lump-sum or "balloon" payment
at maturity in 1997 and 1999 (subject to a two-year extension at the Financing
Partnership's option, subject to certain conditions), respectively. The
Company's ability to make such payments may depend on its ability either to
refinance the applicable indebtedness or to sell properties. The Company has no
commitments to refinance the Acquisition Facility or the Mortgage Loan. The
Company's existing debt obligations are secured by its properties, and therefore
such obligations will permit the lender to foreclose on those properties in the
event of a default.
No Limitation on Debt
The Company currently has a policy of maintaining a ratio of debt to
total market capitalization (i.e., total consolidated debt of the Company as a
percentage of the aggregate market value of all outstanding shares of Common
Stock, assuming the exchange of all limited partnership interests ("Units") in
the Operating Partnership for Common Stock, and the aggregate stated value of
all outstanding shares of preferred stock, plus total consolidated debt) which
generally will not exceed 50% and a coverage ratio (computed as total revenues
minus property expenses and general and administrative expenses divided by
interest expense plus dividends on preferred stock) of at least 2.0:1. However,
the organizational documents of the Company do not contain any limitation on the
amount or percentage of indebtedness the Company may incur. Accordingly, the
Company could become more highly leveraged, resulting in an increase in debt
service that could adversely affect the Company's ability to make expected
distributions to stockholders and in an increased risk of default on its
obligations.
Rising Interest Rates
The Acquisition Facility bears interest at a floating rate. Increases
in the interest rate payable on balances outstanding under the Acquisition
Facility would have an adverse effect on the Company's cash available for
distribution.
Risks Associated with Possible Conflicts of Interest
Competition from Other Business Interests of Certain Officers and Directors
Entities affiliated with or controlled by certain officers and
directors of the Company hold equity interests in industrial properties not
owned by the Company. Some of these properties may compete with properties owned
by the Company. There can be no assurance that decisions by officers and
directors of the Company will fully represent the interests of stockholders of
the Company rather than such individuals and their affiliates.
Tax Consequences to Certain Officers and Directors
Certain officers and directors of the Company own Units which may be
exchanged for Common Stock. Prior to the exchange of Units for Common Stock,
officers and directors of the Company who own Units may suffer different and
more adverse tax consequences than holders of Common Stock upon the sale of
certain of the Company's properties, the refinancing of debt associated with
those properties or in connection with a proposed tender offer or merger
involving the Company and, therefore, such individuals and the Company, as
partners in the Operating Partnership, may have different objectives regarding
the appropriate terms of any such transaction.
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USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement,
the Company intends to use the net proceeds from the sale of Common Stock
offered by this Prospectus and the applicable Prospectus Supplement for general
corporate purposes, which may include the acquisition of additional properties,
the repayment of outstanding debt or the improvement of certain properties
already in the Company's portfolio.
DESCRIPTION OF COMMON STOCK
The description of the Company's Common Stock set forth below does not
purport to be complete and is qualified in its entirety by reference to the
Company's Articles of Incorporation, as amended (the "Articles of
Incorporation"), and Bylaws, as amended (the "Bylaws").
General
Under the Articles of Incorporation, the Company has authority to
issue 100 million shares of Common Stock, par value $.01 per share. Under
Maryland law, stockholders generally are not responsible for the corporation's
debts or obligations. At September 23, 1996, the Company had outstanding
24,137,881 shares of Common Stock.
Terms
Subject to the preferential rights of any other shares or series of
stock (including preferred stock of the Company outstanding from time to time)
and to the provisions of the Articles of Incorporation regarding excess stock,
par value $.01 per share ("Excess Stock"), holders of shares of Common Stock
will be entitled to receive dividends on shares of Common Stock if, as and when
authorized and declared by the Board of Directors of the Company out of assets
legally available therefor and to 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.
Subject to the provisions of the Articles of Incorporation 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, the holders of Common Stock
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.
Holders of Common Stock have no conversion, sinking fund or redemption
rights, or preemptive rights to subscribe for any securities of the Company.
Subject to the provisions of the Articles of Incorporation 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.
Pursuant to the Maryland General Corporation Law, a corporation
generally cannot 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 a lesser percentage (but not less than
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a majority of all of the votes to be cast on the matter) is set forth in the
corporation's Articles of Incorporation. The Articles of Incorporation do 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, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. To assist the Company in
meeting this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by individuals of the Company's
outstanding equity securities. See "Restrictions on Transfers of Capital Stock."
Transfer Agent
The transfer agent and registrar for the Common Stock is KeyCorp
Shareholder Services, Inc. of Cleveland, Ohio.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
For the Company to qualify as a REIT under the Code, among other
things, not more than 50% in value of its outstanding capital stock may be
owned, directly or indirectly, by five or fewer individuals (as defined in the
Code to include certain entities) during the last half of a taxable year, and
such capital stock must 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 Federal Income Tax Considerations." To ensure
that the Company remains a qualified REIT, the Articles of Incorporation,
subject to certain exceptions, provide 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 the Company's 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 the disqualification of the Company as a REIT, including any
transfer that results in the capital stock being owned by fewer than 100 persons
or results in the Company being "closely held" within the meaning of Section
856(h) of the Code, shall be null and void, and the intended transferee will
acquire no rights to the capital stock. Capital stock owned, or deemed to be
owned, or transferred to a stockholder in excess of the ownership limit will
automatically be exchanged for shares of Excess Stock that will be transferred,
by operation of law, to the Company 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 the Company in trust, designate as beneficiary of
the transferee stockholder's 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 such
interest to such 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, the Company will have the right, for a
period of 90 days during the time any Excess Stock is held by the Company in
trust, and, with respect to Excess Stock resulting from the attempted transfer
of preferred stock, at any time when any outstanding shares of preferred stock
of such 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 and the market
price (as determined in the manner set forth in the Articles of Incorporation)
of the capital stock on the date the Company exercises its 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
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of the violative transfer if the original transferee-stockholder gives notice to
the Company of the transfer or, if no such notice is given, the date the Board
of Directors determines that a violative transfer has been made.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
This section is a summary of the material federal income tax matters
of general application pertaining to REITs under the Code. The discussion is
based on current law and does not purport to deal with all aspects of federal
income taxation that may be relevant to investors subject to special treatment
under the federal income tax laws, such as tax-exempt investors, dealers in
securities or foreign persons. The provisions of the Code pertaining to REITs
are highly technical and complex and sometimes involve mixed questions of fact
and law. In addition, this section does not discuss foreign, state or local
taxation. The Company has received an opinion from Cahill Gordon & Reindel as to
the conclusions of law expressed in this summary. Prospective investors should
consult their own tax advisors regarding the federal, state, local, foreign and
other tax consequences specific to them of holding and disposing of the Common
Stock.
Taxation of the Company
In the opinion of Cahill Gordon & Reindel, commencing with its taxable
year ended December 31, 1994, the Company has been organized in conformity with
the requirements for qualification as a REIT under the Code, and the Company's
method of operation will enable the Company to continue so to qualify, provided
that the Company continues to satisfy the various requirements applicable under
the Code to REITs, as described herein. Cahill Gordon & Reindel's opinion is
based on various assumptions and is conditioned upon certain representations as
to factual matters made by the Company and certain partnerships through which
the Company holds substantially all of its assets (the "Partnerships").
Moreover, such qualification and taxation as a REIT depend upon the Company's
ability to meet, 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 Cahill
Gordon & Reindel. Accordingly, no assurance can be given that the actual results
of the Company's operation for any one taxable year will satisfy such
requirements.
To qualify as a REIT under the Code for a taxable year, the Company
must meet certain organizational and operational requirements, which generally
require it to be a passive investor in operating real estate and to avoid
excessive concentration of ownership of its capital stock. Initially, its
principal activities must be real estate related. Generally, at least 75% of the
value of the total assets of the Company at the end of each calendar quarter
must consist of real estate assets, cash or governmental securities. The Company
may not own more than 10% of the outstanding voting securities of any
corporation and the value of any one issuer's securities may not exceed 5% of
the Company's gross assets; shares of qualified REITs, qualified temporary
investments and shares of certain wholly owned subsidiary corporations are
exempt from these prohibitions. The Company holds assets through certain wholly
owned subsidiary corporations and holds preferred stock interests in certain
corporations that provide property management services to third parties; the
Company has been advised by Cahill Gordon & Reindel, based on certain
representations, that these holdings do not violate the prohibition on ownership
of voting securities. Additionally, gross income from the sale or other
disposition of stock and securities held for less than one year and of real
property held for less than four years must constitute less than 30% of the
gross income for each taxable year of a REIT. For each taxable year, at least
75% of a REIT's 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 gain from the sale of real property not held primarily for sale to
customers in the ordinary course of business, dividends on REIT shares, interest
on loans secured by mortgages on real property, certain rents from real property
and 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 income or receipts and, 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 arm's- length
fee and from which the REIT derives no income.
9
Substantially all of the Company's assets are held through the
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. The Partnerships have
not requested, and they do not intend to request, a ruling from the Internal
Revenue Service (the "Service") that they will be treated as partnerships for
federal income tax purposes. Instead, Cahill Gordon & Reindel has delivered its
opinion that, based on the provisions of the partnership agreements of the
Partnerships, the Code, Treasury Regulations, administrative rulings and certain
factual assumptions and representations, the Partnerships will be classified as
partnerships for federal income tax purposes and not as associations taxable as
corporations under Section 7701 of the Code and the Treasury Regulations
thereunder. Unlike a private letter ruling, an opinion of counsel is not binding
on the Service and no assurance can be given that the Service will not challenge
the status of one or more of the Partnerships as a partnership for federal
income tax purposes. If such a challenge were sustained by a court, the relevant
Partnership would be treated as a corporation for federal income tax purposes
and the Company would not be able to satisfy the asset requirements for REIT
status, and thus would not qualify as a REIT. Moreover, the opinion of Cahill
Gordon & Reindel is based on existing law, which is, to a great extent, the
result of administrative and judicial interpretation. No assurance can be given
that administrative or judicial changes would not modify the conclusions
expressed in the opinion.
The Company must satisfy certain ownership restrictions that limit (i)
concentration of ownership of the Company's capital stock by a few individuals
and (ii) ownership by the Company of its tenants. The outstanding capital stock
of the Company must be held by at least 100 stockholders. No more than 50% in
value of the 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 other
entities at any time during the last half of the Company's taxable year.
Accordingly, the Articles of Incorporation contain certain restrictions
regarding the transfer of Common Stock, preferred stock and any other
outstanding securities convertible into Common Stock when necessary to maintain
the Company's 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 the Articles of
Incorporation will be effective in maintaining the Company's REIT status. See
"Restrictions on Transfers of Capital Stock."
So long as the Company qualifies for taxation as a REIT and
distributes at least 95% of its REIT taxable income (computed without regard to
net capital gain or the dividends paid deduction) for its taxable year to its
stockholders annually, the Company itself will not be subject to federal income
tax on that portion of such income distributed to stockholders. The Company will
be taxed at regular corporate rates on all income not distributed to
stockholders. The Company's policy is to distribute at least 95% of its taxable
income. REIT's also may incur taxes for certain other activities or to the
extent distributions do not satisfy certain other requirements.
Failure of the Company to qualify during any taxable year as a REIT
could, unless certain relief provisions were available, have a material adverse
effect upon its stockholders. If disqualified for taxation as a REIT for a
taxable year, the Company also would be disqualified for taxation as a REIT for
the next four taxable years, unless the failure were considered to be due to
reasonable cause and not willful neglect. The Company would be subject to
federal income tax at corporate rates on all of its taxable income and would not
be able to deduct the dividends paid, which could result in a discontinuation of
or substantial reduction in dividends to stockholders. Dividends also would be
subject to the regular tax rules applicable to dividends received by
stockholders of corporations. Should the failure to qualify as a REIT be
determined to have occurred retroactively in an earlier tax year of the Company,
the imposition of a substantial federal income tax liability on the Company
attributable to any nonqualifying tax years may adversely affect the Company's
ability to pay dividends. In the event that the Company fails to meet certain
income tests applicable to REITs, it may, generally, nonetheless retain its
qualification as a REIT if it pays a 100% tax on the amount by which it failed
to meet the relevant income test so long as such failure was considered to be
due to reasonable cause and not willful neglect. Any such taxes would adversely
affect the Company's ability to pay dividends and distributions.
10
PLAN OF DISTRIBUTION
The Company may sell Common Stock through underwriters or dealers,
directly to one or more purchasers, through agents or through a combination of
any such methods of sale. Any underwriter or agent involved in the offer and
sale of the Common Stock will be named in the applicable Prospectus Supplement.
The distribution of the Common Stock may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of Common Stock, underwriters or agents
may receive compensation from the Company or from purchasers of Common Stock,
for whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell Common Stock to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of Common Stock may be deemed to be underwriters under the
Securities Act, and any discounts or commissions they receive from the Company
and any profit on the resale of Common Stock they realize may be deemed to be
underwriting discounts and commissions under the Securities Act. Any such
underwriter or agent will be identified, and any such compensation received from
the Company will be described, in the applicable Prospectus Supplement.
Any Common Stock sold pursuant to a Prospectus Supplement will be
listed on the NYSE.
Under agreements into which the Company may enter, underwriters,
dealers and agents who participate in the distribution of Common Stock may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be tenants of, the Company in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Common Stock from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Common Stock shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility in respect of the validity or
performance of such contracts.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock offered hereby will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
states Common Stock may not be sold unless it has been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
LEGAL MATTERS
Certain legal matters, including the legality of the Common Stock
covered by this Prospectus, will be passed upon for the Company by Cahill Gordon
& Reindel (a partnership including a professional corporation), New York, New
York, and for any underwriters, dealers or agents by Rogers & Wells, New York,
New York. Cahill
11
Gordon & Reindel and Rogers & Wells will rely as to all matters of Maryland law
on the opinion of McGuire, Woods, Battle & Boothe, L.L.P., Baltimore, Maryland.
EXPERTS
The financial statements and schedule thereto incorporated by
reference in this Prospectus or elsewhere in the Registration Statement, to the
extent and for the periods indicated in their reports, have been audited by
Coopers & Lybrand L.L.P., independent accountants, and are incorporated herein
in reliance upon the authority of said firm as experts in giving said reports.
12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection
with the issuance and distribution of the securities registered hereby, which
will be borne by the Company:
Securities and Exchange Commission
registration fee .......................................... $ 68,966
NYSE fee .................................................... 28,000
NASD fee .................................................... 20,500
Printing and duplicating expenses............................ 250,000
Legal fees and expenses...................................... 350,000
Blue sky fees and expenses................................... 25,000
Accounting fees and expenses................................. 50,000
Miscellaneous................................................ 199,534
Total ............................................... $992,000
=======
Item 15. Indemnification of Directors and Officers.
The Articles of Incorporation and Bylaws provide certain limitations
on the liability of the Company's Directors and officers for monetary damages to
the Company. The Articles of Incorporation and Bylaws obligate the Company to
indemnify its Directors and officers, and permit the Company to indemnify its
employees and other agents, against certain liabilities incurred in connection
with their service in such capacities. These provisions could reduce the legal
remedies available to the Company and its stockholders against these
individuals. The provisions of Maryland law provide for the indemnification of
officers and directors of a company under certain circumstances.
Item 16. Exhibits.
Exhibit
Number 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, File No. 1-13102).
4.2* Amended and Restated Bylaws of the Company.
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, File
No. 1-13102).
4.4 Articles Supplementary relating to the Company's 9 1/2% Series A
Cumulative Preferred Stock, $.01 par value (incorporated by reference
to Exhibit 3.4 of the Form 10-Q of the Company for the fiscal quarter
ended June 30, 1996, File No. 1-13102).
4.5 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, File
No. 1-13102).
II-1
5* Opinion of Cahill Gordon & Reindel, counsel to Registrant, as to the
legality of the securities being registered, together with the opinion
of McGuire, Woods, Battle & Boothe, L.L.P.
8* Opinion of Cahill Gordon & Reindel, counsel to Registrant, as to
certain tax matters.
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Cahill Gordon & Reindel (included in Exhibit 5 and Exhibit
8).
23.3* Consent of McGuire, Woods, Battle & Boothe, L.L.P. (included in
Exhibit 5).
24* Powers of Attorney.
- --------------------
* Filed herewith.
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) under the Securities
Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein 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 undersigned
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;
(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; and
II-2
(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 registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's 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
provisions described under Item 15 above, 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 of 1933 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 of 1933
and will be governed by the final adjudication of such issue.
II-3
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 October 1, 1996.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael T. Tomasz
-------------------------------
Name: Michael T. Tomasz
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Michael T. Tomasz Principal Executive October 1, 1996
- -------------------------- Officer and Director
Michael T. Tomasz
/s/ Michael J. Havala Principal Financial and October 1, 1996
- --------------------------- Accounting Officer
Michael J. Havala
* Chief Operating Officer October 1, 1996
- -------------------------------- and Director
Michael W. Brennan
* Director October 1, 1996
- ---------------------------------
Michael G. Damone
- --------------------------------- Director October __, 1996
John L. Lesher
* Director October 1, 1996
- ---------------------------------
Kevin W. Lynch
II-4
Signature Title Date
* Director October 1, 1996
- ---------------------------------
John E. Rau
* Chairman of the Board October 1, 1996
- --------------------------------- of Directors
Jay H. Shidler
* Director October 1, 1996
- ---------------------------------
Robert J. Slater
* Director October 1, 1996
- ---------------------------------
J. Steven Wilson
*By: /s/ Michael J. Havala
-------------------------------------
(Michael J. Havala, Attorney-in-fact)
II-5
EXHIBIT INDEX
Exhibit
Number Description Page
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, File No. 1-13102).
4.2* Amended and Restated Bylaws of the Company.
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, File No. 1-13102).
4.4 Articles Supplementary relating to the Company's 9 1/2% Series A
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.4 of the Form 10-Q of the Company for
the fiscal quarter ended June 30, 1996, File No. 1-13102).
4.5 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, File No. 1-13102).
5* Opinion of Cahill Gordon & Reindel, counsel to Registrant, as
to the legality of the securities being registered, together
with the opinion of McGuire, Woods, Battle & Boothe, L.L.P.
8* Opinion of Cahill Gordon & Reindel, counsel to Registrant, as to
certain tax matters.
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of Cahill Gordon & Reindel (included in Exhibit 5 and
Exhibit 8).
23.3* Consent of McGuire, Woods, Battle & Boothe, L.L.P. (included in
Exhibit 5).
24* Powers of Attorney.
- --------------------
* Filed herewith.
AMENDED AND RESTATED
BYLAWS
OF
FIRST INDUSTRIAL REALTY TRUST, INC.
TABLE OF CONTENTS
Page
ARTICLE I MEETINGS OF STOCKHOLDERS..................... 1
1.1 PLACE........................................ 1
1.2 ORGANIZATION MEETING; ANNUAL MEETING......... 1
1.3 MATTERS TO BE CONSIDERED AT ANNUAL
MEETING.................................... 2
1.4 SPECIAL MEETINGS............................. 6
1.5 NOTICE....................................... 7
1.6 SCOPE OF NOTICE.............................. 7
1.7 QUORUM....................................... 8
1.8 VOTING....................................... 8
1.9 PROXIES...................................... 9
1.10 CONDUCT OF MEETINGS.......................... 10
1.11 TABULATION OF VOTES.......................... 10
1.12 INFORMAL ACTION BY STOCKHOLDERS.............. 11
1.13 VOTING BY BALLOT............................. 12
ARTICLE II DIRECTORS.................................... 12
2.1 GENERAL POWERS............................... 12
2.2 OUTSIDE ACTIVITIES........................... 12
2.3 NUMBER, TENURE AND QUALIFICATION............. 13
2.4 NOMINATION OF DIRECTORS...................... 14
2.5 ANNUAL AND REGULAR MEETINGS.................. 19
2.6 SPECIAL MEETINGS............................. 20
2.7 NOTICE....................................... 20
2.8 QUORUM....................................... 21
2.9 VOTING....................................... 21
2.10 CHAIRMAN OF THE BOARD........................ 22
2.11 CONDUCT OF MEETINGS.......................... 22
2.12 RESIGNATIONS................................. 23
2.13 REMOVAL OF DIRECTORS......................... 23
2.14 VACANCIES.................................... 23
2.15 INFORMAL ACTION BY DIRECTORS................. 24
2.16 COMPENSATION................................. 24
ARTICLE III COMMITTEES................................... 25
3.1 NUMBER, TENURE AND QUALIFICATION............. 25
3.2 DELEGATION OF POWER.......................... 25
3.3 QUORUM AND VOTING............................ 25
3.4 CONDUCT OF MEETINGS.......................... 26
3.5 INFORMAL ACTION BY COMMITTEES................ 26
ARTICLE IV OFFICERS..................................... 27
-i-
Page
4.1 TITLES AND ELECTION.......................... 27
4.2 REMOVAL...................................... 27
4.3 OUTSIDE ACTIVITIES........................... 28
4.4 VACANCIES.................................... 29
4.5 PRESIDENT.................................... 29
4.6 CHIEF OPERATING OFFICER...................... 30
4.7 CHIEF FINANCIAL OFFICER...................... 31
4.8 VICE PRESIDENTS.............................. 31
4.9 SECRETARY.................................... 31
4.10 TREASURER.................................... 32
4.11 ASSISTANT SECRETARIES AND ASSISTANT
TREASURERS................................. 33
4.12 OTHER OFFICERS............................... 33
4.13 SALARIES..................................... 34
ARTICLE V SHARES OF STOCK.............................. 34
5.1 NO CERTIFICATES FOR STOCK.................... 34
5.2 ELECTION TO ISSUE CERTIFICATES............... 34
5.3 STOCK LEDGER................................. 35
5.4 RECORDING TRANSFERS OF STOCK................. 36
5.5 LOST CERTIFICATES............................ 37
5.6 CLOSING OF TRANSFER BOOKS OR FIXING
OF RECORD DATE............................. 37
ARTICLE VI DIVIDENDS AND DISTRIBUTIONS.................. 39
6.1 DECLARATION.................................. 39
6.2 CONTINGENCIES................................ 39
ARTICLE VII INDEMNIFICATION.............................. 40
7.1 INDEMNIFICATION TO THE EXTENT PERMIT-
TED BY LAW................................. 40
7.2 INSURANCE.................................... 41
7.3 NON-EXCLUSIVE RIGHT TO INDEMNITY;
HEIRS AND PERSONAL REPRESENTATIVES......... 41
7.4 NO LIMITATION................................ 41
ARTICLE VIII NOTICES...................................... 42
8.1 NOTICES...................................... 42
8.2 SECRETARY TO GIVE NOTICE..................... 42
8.3 WAIVER OF NOTICE............................. 43
ARTICLE IX MISCELLANEOUS................................ 44
9.1 BOOKS AND RECORDS............................ 44
-ii-
Page
9.2 INSPECTION OF BYLAWS AND CORPORATE
RECORDS.................................... 44
9.3 CONTRACTS.................................... 45
9.4 CHECKS, DRAFTS, ETC.......................... 45
9.5 LOANS........................................ 45
9.6 FISCAL YEAR.................................. 47
9.7 ANNUAL REPORT................................ 47
9.8 INTERIM REPORTS.............................. 47
9.9 OTHER REPORTS................................ 48
9.10 BYLAWS SEVERABLE............................. 48
ARTICLE X AMENDMENT OF BYLAWS.......................... 48
10.1 BY DIRECTORS................................. 48
10.2 BY STOCKHOLDERS.............................. 49
-iii-
ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1 PLACE. All meetings of the holders of the
issued and outstanding capital stock of the Corporation (the
"Stockholders") shall be held at the principal executive office
of the Corporation or such other place within the United States
as shall be stated in the notice of the meeting.
1.2 ORGANIZATION MEETING; ANNUAL MEETING. An annual
meeting of the Stockholders for the election of Directors and
the transaction of such other business as properly may be
brought before the meeting shall be held on the third Wednesday
in April of each year or at such other date and time as may be
fixed by the Board of Directors. If the date fixed for the
annual meeting shall be a legal holiday, such meeting shall be
held on the next succeeding business day. If no annual meeting
is held on the date designated, a special meeting in lieu
thereof may be held, and such special meeting shall have, for
purposes of these Bylaws or otherwise, all the force and effect
of an annual meeting. Any and all references hereinafter in
these Bylaws to an annual meeting or to annual meetings shall
be deemed to refer also to any special meeting(s) in lieu
thereof. Failure to hold an annual meeting shall not invali-
date the Corporation's existence or affect any otherwise valid
act of the Corporation.
-2-
1.3 MATTERS TO BE CONSIDERED AT ANNUAL MEETING. (a)
At an annual meeting of Stockholders only such business shall
be conducted, and only such proposals shall be acted upon, as
shall have been properly brought before the annual meeting (i)
by, or at the direction of, a majority of the Board of Direc-
tors or (ii) by any holder of record (both as of the time
notice of such proposal is given by the Stockholder as set
forth below and as of the record date for the annual meeting in
question) of any shares of the Corporation's capital stock
entitled to vote at such annual meeting who complies with the
procedure set forth in this Section 1.3. For a proposal to be
properly brought before an annual meeting by a Stockholder, the
Stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation, and such Stockholder or his
representative must be present in person at the annual meeting.
For the first annual meeting following the initial public
offering of common stock of the Corporation, a Stockholder's
notice shall be timely if delivered to, or mailed and received
at, the principal executive office of the Corporation not later
than the close of business on the 20th calendar day (or if that
day is not a business day for the Corporation, on the next
business day) following the date on which notice of the date
for the first annual meeting is mailed or otherwise transmitted
-3-
to Stockholders. For all subsequent annual meetings, a Stock-
holder's notice shall be timely if delivered to, or mailed and
received at, the principal executive offices of the Corporation
(A) not less than 75 days nor more than 180 days prior to the
anniversary date of the immediately preceding annual meeting of
Stockholders or special meeting in lieu thereof (the "Anniver-
sary Date") or (B) in the event that the annual meeting of
Stockholders is called for a date more than 7 calendar days
prior to the Anniversary Date, not later than the close of
business on (1) the 20th calendar day (or if that day is not a
business day for the Corporation, on the next succeeding busi-
ness day) following the earlier of (x) the date on which notice
of the date of such meeting was mailed to Stockholders or (y)
the date on which the date of such meeting was publicly dis-
closed or (2) if such date of notice or public disclosure
occurs more than 75 calendar days prior to the scheduled date
of such meeting, then the later of (x) the 20th calendar day
(or if that day is not a business day for the Corporation, on
the next succeeding business day) following the date of the
first to occur of such notice or public disclosure or (y) the
75th calendar day prior to such scheduled date of such meeting
(or if that day is not a business day for the Corporation, on
the next succeeding business day).
-4-
(b) A Stockholder's notice to the Secretary shall
set forth as to each matter the Stockholder proposes to bring
before the annual meeting (i) a brief description of the pro-
posal desired to be brought before the annual meeting and the
reasons for conducting such business at the annual meeting,
(ii) the name and address, as they appear on the Corporation's
stock transfer books, of the Stockholder proposing such busi-
ness and of the beneficial owners (if any) of the stock regis-
tered in such Stockholder's name and the name and address of
other Stockholders known by such Stockholder to be supporting
such proposal on the date of such Stockholder's notice, (iii)
the class and number of shares of the Corporation's capital
stock which are beneficially owned by the Stockholder and such
beneficial owners (if any) on the date of such Stockholder's
notice and by any other Stockholders known by such Stockholder
to be supporting such proposal on the date of such Stockhold-
er's notice and (iv) any financial interest of the Stockholder
or of any such beneficial owner in such proposal.
(c) If the Board of Directors, or a designated com-
mittee thereof, determines that any Stockholder proposal was
not timely made in accordance with the terms of this Section
1.3, such proposal shall not be presented for action at the
annual meeting in question. If the Board of Directors or a
-5-
designated committee thereof determines that the information
provided in a Stockholder's notice does not satisfy the infor-
mational requirements of this section in any material respect,
the Secretary of the Corporation shall promptly notify such
Stockholder of the deficiency in the notice. Such Stockholder
shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within the period of
time, not to exceed 5 days from the date such deficiency notice
is given to the Stockholder, determined by the Board of Direc-
tors or such committee. If the deficiency is not cured within
such period, or if the Board of Directors of such committee
determines that the additional information provided by the
Stockholder, together with the information previously provided,
does not satisfy the requirements of this Section 1.3 in any
material respect, then such proposal shall not be presented for
action at the annual meeting in question.
(d) Notwithstanding the procedure set forth in the
preceding paragraph, if neither the Board of Directors nor such
committee makes a determination as to the validity of any
Stockholder proposal as set forth above, the presiding Officer
of the annual meeting shall determine and declare at the annual
meeting whether the Stockholder proposal was made in accordance
with the terms of this Section 1.3. If the presiding Officer
-6-
determines that a Stockholder proposal was made in accordance
with the terms of this Section 1.3, the presiding Officer shall
so declare at the annual meeting. If the presiding Officer
determines that a Stockholder proposal was not made in accor-
dance with the provisions of this Section 1.3, the presiding
Officer shall so declare at the annual meeting and such pro-
posal shall not be acted upon at the annual meeting.
(e) This provision shall not prevent the considera-
tion and approval or disapproval at the annual meeting of
reports of Officers, Directors and committees of the Board of
Directors, but in connection with such reports, no new business
shall be acted upon at such annual meeting except in accordance
with the provisions of this Section 1.3.
1.4 SPECIAL MEETINGS. The Chairman of the Board,
the President or a majority of the Board of Directors may call
special meetings of the Stockholders. Special meetings of
Stockholders shall also be called by the Secretary upon the
written request of the holders of shares entitled to cast 25%
or more of the votes entitled to be cast at such meeting; pro-
vided, however, that unless requested by Stockholders entitled
to cast a majority of all the votes entitled to be cast at the
meeting, a special meeting need not be called to consider any
-7-
matter which is substantially the same as a matter voted on at
any special meeting of the Stockholders held during the preced-
ing 12 months. Such request shall state the purpose or pur-
poses of such meeting and the matters proposed to be acted on
thereat. The date, time, place and record date for any special
meeting, including a special meeting called at the request of
Stockholders, shall be established by the Board of Directors or
Officer calling the same.
1.5 NOTICE. Not less than ten (10) nor more than
ninety (90) days before the date of every meeting of Stockhold-
ers, written or printed notice of such meeting shall be given,
in accordance with Article VIII, to each Stockholder entitled
to vote or entitled to notice by statute, stating the time and
place of the meeting and, in the case of a special meeting or
as otherwise may be required by statute, the purpose or pur-
poses for which the meeting is called.
1.6 SCOPE OF NOTICE. No business shall be trans-
acted at a special meeting of Stockholders except that specifi-
cally designated in the notice of the meeting. Any business of
the Corporation may be transacted at the annual meeting without
being specifically designated in the notice, except such busi-
ness as is required by statute to be stated in such notice.
-8-
1.7 QUORUM. At any meeting of Stockholders, the
presence in person or by proxy of Stockholders entitled to cast
a majority of the votes shall constitute a quorum; but this
Section shall not affect any requirement under any statute or
the Articles of Incorporation of the Corporation, as amended
(the "Charter"), for the vote necessary for the adoption of any
measure. If, however, a quorum is not present at any meeting
of the Stockholders, the Stockholders present in person or by
proxy shall have the power to adjourn the meeting from time to
time without notice other than by announcement at the meeting
until a quorum is present, and the meeting so adjourned may be
reconvened without further notice. At any adjourned meeting at
which a quorum is present, any business may be transacted that
might have been transacted at the meeting as originally noti-
fied. The Stockholders present at a meeting which has been
duly called and convened and at which a quorum is present at
the time counted may continue to transact business until
adjournment, notwithstanding the withdrawal of enough Stock-
holders to leave less than a quorum.
1.8 VOTING. A majority of the votes cast at a meet-
ing of Stockholders duly called and at which a quorum is pre-
sent shall be sufficient to take or authorize action upon any
matter which may properly come before the meeting, unless more
-9-
than a majority of the votes cast is specifically required by
statute, the Charter or these Bylaws. Unless otherwise pro-
vided by statute, the Charter or these Bylaws, each outstanding
share (a "Share") of capital stock of the Corporation (the
"Stock"), regardless of class, shall be entitled to one vote
upon each matter submitted to a vote at a meeting of Stockhold-
ers. Pursuant to Section 3-702 of the Maryland General Corpo-
ration Law, any and all acquisitions of Shares of Stock are
hereby exempted from the provisions of Title 3, Subtitle 7 of
the Maryland General Corporation Law, which relates to voting
rights of certain control shares. Shares of its own Stock
directly or indirectly owned by the Corporation shall not be
voted in any meeting and shall not be counted in determining
the total number of outstanding Shares entitled to vote at any
given time, but Shares of its own voting Stock held by it in a
fiduciary capacity may be voted and shall be counted in deter-
mining the total number of outstanding Shares at any given
time. Notwithstanding anything contained in these Bylaws the
rights of Excess Stock and the holders of Excess Stock shall be
limited to rights provided in the Corporation's Articles of
Incorporation, as amended from time to time.
1.9 PROXIES. A Stockholder may vote the Shares
owned of record by him or her, either in person or by proxy
-10-
executed in writing by the Stockholder or by his or her duly
authorized attorney in fact. Such proxy shall be filed with
the Secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after eleven (11) months from
the date of its execution, unless otherwise provided in the
proxy.
1.10 CONDUCT OF MEETINGS. The Chairman of the Board
or, in the absence of the Chairman, the President, or, in the
absence of the Chairman, President and Vice Presidents, a pre-
siding Officer elected at the meeting, shall preside over meet-
ings of Stockholders. The Secretary of the Corporation, or, in
the absence of the Secretary and Assistant Secretaries, the
person appointed by the presiding Officer of the meeting, shall
act as secretary of such meeting.
1.11 TABULATION OF VOTES. At any annual or special
meeting of Stockholders, the presiding Officer shall be autho-
rized to appoint a teller for such meeting (the "Teller"). The
Teller may, but need not, be an Officer or employee of the Cor-
poration. The Teller shall be responsible for tabulating or
causing to be tabulated Shares voted at the meeting and review-
ing or causing to be reviewed all proxies. In tabulating
votes, the Teller shall be entitled to rely in whole or in part
-11-
on tabulations and analyses made by personnel of the Corpora-
tion, its counsel, its transfer agent, its registrar or such
other organizations that are customarily employed to provide
such services. The Teller may be authorized by the presiding
Officer to determine on a preliminary basis the legality and
sufficiency of all votes cast and proxies delivered under the
Corporation's Charter, Bylaws and applicable law. The presid-
ing Officer may review all preliminary determinations made by
the Teller hereunder and, in doing so, the presiding Officer
shall be entitled to exercise his or her sole judgment and dis-
cretion and he or she shall not be bound by any preliminary
determinations made by the Teller. Each report of the Teller
shall be in writing and signed by him or her.
1.12 INFORMAL ACTION BY STOCKHOLDERS. An action
required or permitted to be taken at a meeting of Stockholders
may be taken without a meeting if a consent in writing, setting
forth such action, is signed by all the Stockholders entitled
to vote on the subject matter thereof and any other Stockhold-
ers entitled to notice of a meeting of Stockholders (but not to
vote thereat) have waived in writing any rights which they may
have to dissent from such action, and such consents and waivers
are filed with the minutes of proceedings of the Stockholders.
-12-
Such consents and waivers may be signed by different Stockhold-
ers on separate counterparts.
1.13 VOTING BY BALLOT. Voting on any question or in
any election may be viva voce unless the presiding Officer
shall order or any Stockholder shall demand that voting be by
ballot.
ARTICLE II
DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the
Corporation shall be managed by its Board of Directors. All
powers of the Corporation may be exercised by or under the
authority of the Board of Directors, except as conferred on or
reserved to the Stockholders by statute, the Charter or these
Bylaws.
2.2 OUTSIDE ACTIVITIES. The Board of Directors and
its members are required to spend only such time managing the
business and affairs of the Corporation as is necessary to
carry out their duties in accordance with Section 2-405.1 of
the Maryland General Corporation Law. The Board of Directors,
each Director, and the agents, Officers and employees of the
Corporation or of the Board of Directors or of any Director may
-13-
engage with or for others in business activities of the types
conducted by the Corporation. Except as set forth in the Char-
ter or by separate agreement, none of such individuals has an
obligation to notify or present to the Corporation or each
other any investment opportunity that may come to such person's
attention even though such investment might be within the scope
of the Corporation's purposes or various investment objectives.
Any interest (including any interest as defined in Section
2-419(a) of the Maryland General Corporation Law) that a Direc-
tor has in any investment opportunity presented to the Corpora-
tion must be disclosed by such Director to the Board of Direc-
tors (and, if voting thereon, to the Stockholders or to any
committee of the Board of Directors) within ten (10) days after
the later of the date upon which such Director becomes aware of
such interest or the date upon which such Director becomes
aware that the Corporation is considering such investment
opportunity. If such interest comes to the interested Direc-
tor's attention after a vote to take such investment opportu-
nity, the voting body shall be notified of such interest and
shall reconsider such investment opportunity if not already
consummated or implemented.
2.3 NUMBER, TENURE AND QUALIFICATION. The number of
Directors of the Corporation shall be that number set forth in
-14-
the Charter or such other number as may be designated from time
to time by resolution of a majority of the entire Board of
Directors; provided, however, that the number of Directors
shall never be more than the maximum number provided in the
Charter nor less than the number required by Section 2-402 of
the Maryland General Corporation Law, as amended from time to
time, and further provided that the tenure of office of a
Director shall not be affected by any decrease in the number of
Directors. Each Director shall serve for the term set forth in
the Charter and until his or her successor is elected and
qualified.
2.4 NOMINATION OF DIRECTORS. (a) Nominations of
candidates for election as Directors of the Corporation at any
annual meeting of Stockholders may be made (i) by, or at the
direction of, a majority of the Board of Directors or (ii) by
any holder of record (both as of the time notice of such nomi-
nation is given by the Stockholder as set forth below and as of
the record date for the annual meeting in question) of any
shares of the Corporation's capital stock entitled to vote at
such meeting who complies with the procedures set forth in this
Section 2.4. Any Stockholder who seeks to make such a nomina-
tion, or his or her representative, must be present in person
at the annual meeting. Only persons nominated in accordance
-15-
with the procedures set forth in this Section 2.4 shall be eli-
gible for election as Directors at an annual meeting of Stock-
holders.
(b) Nominations, other than those made by, or at the
direction of, the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation as
set forth in this Section 2.4. For all annual meetings prior
to the initial public offering of common stock of the Corpora-
tion, notice shall be timely if delivered to, or mailed and
received at, the principal executive office of the Corporation
not later than the close of business on the 20th calendar day
(or if that day is not a business day for the Corporation, the
next business day) following the date on which notice of such
annual meeting is mailed or otherwise transmitted to Stockhold-
ers. For all annual meetings subsequent to the initial public
offering of common stock of the Corporation, a Stockholder's
notice shall be timely if delivered to, or mailed and received
at, the principal executive offices of the Corporation (i) not
less than 75 days nor more than 180 days prior to the Anniver-
sary Date or (ii) in the event that the annual meeting of
Stockholders is called for a date more than 7 calendar days
prior to the Anniversary date, not later than the close of
business on (A) the 20th calendar day (or if that day is not a
-16-
business day for the Corporation, on the next succeeding busi-
ness day) following the earlier of (1) the date on which notice
of the date of such meeting was mailed to Stockholders or (2)
the date on which the date of such meeting was publicly dis-
closed or (B) if such date of notice or public disclosure
occurs more than 75 calendar days prior to the scheduled date
of such meeting, then the later of (1) the 20th calendar day
(or if that day is not a business day for the Corporation, on
the next succeeding business day) following the date of the
first to occur of such notice or public disclosure or (2) the
75th calendar day prior to such scheduled date of such meeting
(or if that day is not a business day for the Corporation, on
the next succeeding business day).
(c) A Stockholder's notice of nomination shall set
forth as to each person the Stockholder proposes to nominate
for election as a Director (i) the name, age, business address
and residence address of such person, (ii) the principal occu-
pation or employment of such person for the past five years,
(iii) the class and number of shares of the Corporation's capi-
tal stock which are beneficially owned by such person on the
date of such notice, (iv) such nominee's written consent to be
named in the proxy statement as a nominee and to serve as a
Director if elected, (v) whether such Director is an
-17-
Independent Director (as defined in the Charter) and (vi) any
other information relating to such person that is required to
be disclosed in solicitations of proxies with respect to nomi-
nees for election as may be deemed necessary or desirable by
the Corporation's counsel, in the exercise of his or her dis-
cretion. Notice by a Stockholder shall, in addition to the
above-referenced information, set forth as to the Stockholder
giving the notice (A) the name and address, as they appear on
the Corporation's stock transfer books, of such Stockholder and
of the beneficial owners (if any) of the stock registered in
such Stockholder's name; (B) the name and address of other
Stockholders known by such Stockholder to be supporting such
nominees on the date of such Stockholder's notice; (C) the
class and number of shares of the Corporation's capital stock
which are beneficially owned by such Stockholder and such bene-
ficial owners (if any) on the date of such Stockholder's
notice; and (D) the class and number of shares of the Corpora-
tion's capital stock which are beneficially owned by any other
Stockholders known by such Stockholder to be supporting such
nominees on the date of such Stockholder's notice. At the
request of the Board of Directors, any person nominated by or
at the direction of the Board of Directors for election as a
Director at any annual meeting shall furnish to the Secretary
-18-
of the Corporation that information which would be required to
be set forth in a Stockholder's notice of nomination of such
nominee.
(d) No person shall be elected by the Stockholders
as a Director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 2.4. If the
Board of Directors, or a designated committee thereof, deter-
mines that a nomination made by any Stockholder was not timely
made in accordance with the terms of this section, such nomina-
tion shall not be considered at the annual meeting in question.
If the Board of Directors, or a designated committee thereof,
determines that the information provided in a Stockholder's
notice does not satisfy the informational requirements of this
Section 2.4 in any material respect, the Secretary of the Cor-
poration shall promptly notify such Stockholder of the defi-
ciency in the notice. Such Stockholder shall have an opportu-
nity to cure the deficiency by providing additional information
to the Secretary within the period of time, not to exceed 5
days from the date such deficiency notice is given to such
Stockholder, determined by the Board of Directors or such com-
mittee. If the deficiency is not cured within such period, or
if the Board of Directors or such committee determines that the
additional information provided by such Stockholder, together
-19-
with the information previously provided, does not satisfy the
requirements of this Section 2.4 in any material respect, such
nomination shall not be considered at the annual meeting in
question.
(e) Notwithstanding the procedures set forth in the
preceding paragraph, if neither the Board of Directors nor a
designated committee thereof makes a determination as to the
validity of any nominations by any Stockholder as set forth
above, the presiding Officer of the Stockholders' meeting shall
determine and declare at the Stockholders' meeting whether a
nominations as made in accordance with the terms of this Sec-
tion 2.4. If the presiding Officer determines that a nomina-
tion was not made in accordance with the terms of this Section
2.4, such nomination shall be disregarded, and the Board of
Directors shall make all Director nominations on behalf of the
Corporation.
2.5 ANNUAL AND REGULAR MEETINGS. An annual meeting
of the Board of Directors may be held immediately after and at
the same place as the annual meeting of Stockholders, or at
such other time and place, either within or without the State
of Maryland, as is selected by resolution of the Board of
Directors, and no notice other than this Bylaw of such
-20-
resolution shall be necessary. The Board of Directors may pro-
vide, by resolution, the time and place, either within or with-
out the State of Maryland, for the holding of regular meetings
of the Board of Directors without other notice than such
resolution.
2.6 SPECIAL MEETINGS. Special meetings of the Board
of Directors may be called by or at the request of the Chairman
of the Board, the President or a majority of the Directors then
in office. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either
within or without the State of Maryland, as the place for hold-
ing any special meeting of the Board of Directors called by
them.
2.7 NOTICE. Notice of any special meeting to be
provided herein shall be given, in accordance with Article
VIII, by written notice delivered personally, telegraphed or
telecopied to each director at his or her business or residence
at least twenty-four (24) hours, or by mail at least five (5)
days, prior to the meeting. Neither the business to be trans-
acted at, nor the purpose of, any annual, regular or special
meeting of the Board of Directors need be specified in the
-21-
notice, unless specially required by statute, the Charter or
these Bylaws.
2.8 QUORUM. A majority of the Board of Directors
then in office shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors. If less
than a majority of the Board of Directors is present at said
meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
2.9 VOTING. The act of a majority of the Directors
present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless the concurrence of a
greater proportion is required for such action by applicable
statute, the Charter or these Bylaws; provided, however, that
(1) no act relating to any matter in which a Director (or
affiliate of such Director) has any interest shall be the act
of the Board of Directors unless such act has been approved by
a majority of the Board of Directors that includes a majority
of the disinterested Directors and (2) commencing on the Ini-
tial Public Offering Date (as defined in the Charter) no deci-
sion by the Corporation whether to issue shares of Common Stock
(as defined in the Charter) or to pay cash in exchange for
partnership units of First Industrial, L.P. shall be the act of
-22-
the Board of Directors unless such act has been approved by a
majority of the Independent Directors (as defined in the
Charter).
2.10 CHAIRMAN OF THE BOARD. The Board of Directors
may appoint a Chairman of the Board. The Chairman of the Board
shall not be an officer of the Company, but may sign and exe-
cute all authorized bonds, contracts or other obligations in
the name of the Corporation, except in cases where the execu-
tion thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other Officer or agent of
the Corporation or shall be required by law to be otherwise
signed or executed.
2.11 CONDUCT OF MEETINGS. All meetings of the Board
of Directors shall be called to order and presided over by the
Chairman of the Board or, in the absence of the Chairman of the
Board, by the President (if a member of the Board of Directors)
or, in the absence of the Chairman of the Board and the Presi-
dent, by a member of the Board of Directors selected by the
members present. The Secretary of the Corporation, or in the
absence of the Secretary, any Assistant Secretary, shall act as
secretary at all meetings of the Board of Directors, and in the
absence of the Secretary and Assistant secretaries, the
-23-
presiding Officer of the meeting shall designate any person to
act as secretary of the meeting. Members of the Board of
Directors may participate in meetings of the Board of Directors
by conference telephone or similar communications equipment by
means of which all Directors participating in the meeting can
hear each other at the same time, and participation in a meet-
ing in accordance herewith shall constitute presence in person
at such meeting for all purposes of these Bylaws.
2.12 RESIGNATIONS. Any Directors may resign from
the Board of Directors or any committee thereof at any time.
Such resignation shall be made in writing and shall take effect
at the time specified therein, or if no time be specified, at
the time of the receipt of notice of such resignation by the
President or the Secretary.
2.13 REMOVAL OF DIRECTORS. Consistent with the
Charter, the Stockholders may, at any time, remove any Direc-
tor, with or without cause, by the affirmative vote of a major-
ity of all the votes entitled to be cast on a matter, and may
elect a successor to fill any resulting vacancy for the balance
of the term of the removed Director.
2.14 VACANCIES. The Stockholders may elect a suc-
cessor to fill a vacancy on the Board of Directors which
-24-
results from the removal of a Director. Furthermore, any
vacancy occurring on the Board of Directors for any cause other
than by reason of an increase in the number of Directors may be
filled by a majority vote of the remaining Directors, although
such majority is less than a quorum. Any vacancy occurring on
the Board of Directors by reason of an increase in the number
of Directors may be filled by a majority vote of the entire
Board of Directors. A Director elected by the Board of Direc-
tors to fill a vacancy shall hold office until the next annual
meeting of Stockholders and until his or her successor is
elected and qualifies.
2.15 INFORMAL ACTION BY DIRECTORS. Any action
required or permitted to be taken at any meeting of the Board
of Directors may be taken without a meeting, if a consent in
writing to such action is signed by all of the Directors and
such written consent is filed with the minutes of the Board of
Directors. Consents may be signed by different Directors on
separate counterparts.
2.16 COMPENSATION. An annual fee for services and
payment for expenses of attendance at each meeting of the Board
of Directors, or of any committee thereof, may be allowed to
any Director by resolution of the Board of Directors.
-25-
ARTICLE III
COMMITTEES
3.1 NUMBER, TENURE AND QUALIFICATION. The Board of
Directors may appoint from among its members an Executive Com-
mittee and other committees, composed of two or more Directors,
to serve at the pleasure of the Board of Directors; provided,
however, that the Board of Directors will appoint to the Corpo-
ration's Audit Committee only Independent Directors (as defined
in the Charter).
3.2 DELEGATION OF POWER. The Board of Directors may
delegate to these committees in the intervals between meetings
of the Board of Directors any of the powers of the Board of
Directors to manage the business and affairs of the Corpora-
tion, except those powers which the Board of Directors is spe-
cifically prohibited from delegating pursuant to Section
2-411(a)(2) of the Maryland General Corporation Law.
3.3 QUORUM AND VOTING. A majority of the members of
any committee shall constitute a quorum for the transaction of
business by such committee, and the act of a majority of the
quorum shall constitute the act of the committee.
-26-
3.4 CONDUCT OF MEETINGS. Each committee shall des-
ignate a presiding Officer of such committee, and if such Offi-
cer is not present at a particular meeting, the committee shall
select a presiding Officer for such meeting. Members of any
committee may participate in meetings of such committee by con-
ference telephone or similar communications equipment by means
of which all Directors participating in the meeting can hear
each other at the same time, and participation in a meeting in
accordance herewith shall constitute presence in person at such
meeting for all purposes of these Bylaws. Each committee shall
keep minutes of its meetings, and report the results of any
proceedings at the next succeeding annual or regular meeting of
the Board of Directors.
3.5 INFORMAL ACTION BY COMMITTEES. Any action
required or permitted to be taken at any meeting of a committee
of the Board of Directors may be taken without a meeting, if a
written consent to such action is signed by all members of the
committee and such written consent is filed with the minutes of
proceedings of such committee. Consents may be signed by dif-
ferent members on separate counterparts.
-27-
ARTICLE IV
OFFICERS
4.1 TITLES AND ELECTION. The Corporation shall have
a President, Secretary and Treasurer to comply with MGCL
{ 2-412(a), and such other Officers as the Board of Directors,
or any committee or Officer appointed by the Board of Directors
for such purpose, may from time to time elect. The Officers of
the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held
after each annual meeting of Stockholders. If the election of
Officers shall not be held at such meeting, such election shall
be held as soon thereafter as may be convenient. Each Officer
shall hold office until his successor is duly elected and qual-
ified or until his death, resignation or removal in the manner
hereinafter proved. Any two or more offices except President
and Vice President may be held by the same person. Election or
appointment of an Officer or agent shall not of itself create
contract rights between the Corporation and such Officer or
agent.
4.2 REMOVAL. Any Officer or agent elected or
appointed by the Board of Directors may be removed by the Board
of Directors whenever in its judgment the best interests of the
-28-
Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person
removed. The fact that a person is elected to an office,
whether or not for a specified term, shall not by itself con-
stitute any undertaking or evidence of any employment obliga-
tion of the Corporation to that person.
4.3 OUTSIDE ACTIVITIES. The Officers and agents of
the Corporation are required to spend only such time managing
the business and affairs of the Corporation as is necessary to
carry out their duties in accordance with the law and these
Bylaws. The Officers and agents of the Corporation may engage
with or for others in business activities of the types con-
ducted by the Corporation. Except as set forth in the Charter
or by separate agreement, none of such individuals has an obli-
gation to notify or present to the Corporation or each other
any investment opportunity that may come to such person's
attention even though such investment might be within the scope
of the Corporation's purposes or various investment objectives.
Any interest (including any interest within the meaning of Sec-
tion 2-419(a) of the Maryland General Corporation Law as if the
Officer or agent were a Director of the Corporation) that an
Officer or an agent has in any investment opportunity presented
to the Corporation must be disclosed by such Officer or agent
-29-
to the Board of Directors (and, if voting thereon, to the
Stockholders or to any committee of the Board of Directors)
within ten (10) days after the later of the date upon which
such Officer or agent becomes aware of such interest or the
date upon which such Officer or agent becomes aware that the
Corporation is considering such investment opportunity. If
such interest comes to the attention of the interested Officer
or agent after a vote to take such investment opportunity, the
voting body shall be notified of such interest and shall recon-
sider such investment opportunity if not already consummated or
implemented.
4.4 VACANCIES. A vacancy in any office may be
filled by the Board of Directors for the unexpired portion of
the term.
4.5 PRESIDENT. Unless the Board of Directors shall
otherwise determine, the President shall be the Chief Executive
Officer and general manager of the Corporation and shall in
general supervise and control all of the business and affairs
of the Corporation. In the absence of the Chairman of the
Board, the President shall preside at all meetings of the
Stockholders and of the Board of Directors (if a member of the
Board of Directors). The President may sign any deed,
-30-
mortgage, bond, contract or other instruments on behalf of the
Corporation except in cases where the execution thereof shall
be expressly delegated by the Board of Directors or by these
Bylaws to some other Officer or agent of the Corporation or
shall be required by law to be otherwise signed or executed.
In general, the President shall perform all duties incident to
the office of President and such other duties as may be pre-
scribed by the Board of Directors from time to time.
4.6 CHIEF OPERATING OFFICER. The Board of Directors
may appoint a Chief Operating Officer. In the absence of the
President or in the event of a vacancy in such office, the
Chief Operating Officer shall perform the duties of the Presi-
dent and when so acting shall have all the powers of and be
subject to all the restrictions upon the President. The Chief
Operating Officer may sign any deed, mortgage, bond, contract
or other instruments on behalf of the Corporation except in
cases where the execution thereof shall be expressly delegated
by the Board of Directors or by these Bylaws to some other
Officer or agent of the Corporation or shall be required by law
to be otherwise signed or executed. In general, the Chief
Operating Officer shall perform all duties incident to the
office of Chief Operating Officer and such other duties as may
be prescribed by the Board of Directors from time to time.
-31-
4.7 CHIEF FINANCIAL OFFICER. The Board of Directors
may appoint a Chief Financial Officer. In general, the Chief
Financial Officer shall perform all duties incident to the
office of Chief Financial Officer and such other duties as may
be prescribed by the Board of Directors from time to time.
4.8 VICE PRESIDENTS. The Board of Directors may
appoint one or more Vice President. In the absence of both the
President and the Chief Operating Officer or in the event of a
vacancy in both such offices, the Vice President (or in the
event there be more than one Vice President, the Vice Presi-
dents in the order designated at the time of their election or,
in the absence of any designation, then in the order of their
election) shall perform the duties of the President and when so
acting shall have all the powers of and be subject to all the
restrictions upon the President. Every Vice President shall
perform such other duties as from time to time may be assigned
to him or her by the President or the Board of Directors.
4.9 SECRETARY. The Secretary shall (i) keep the
minutes of the proceedings of the Stockholders and Board of
Directors in one or more books provided for that purpose; (ii)
see that all notices are duly given in accordance with the pro-
visions of these Bylaws or as required by law; (iii) be
-32-
custodian of the corporate records of the Corporation; (iv)
unless a transfer agent is appointed, keep a register of the
post office address of each Stockholder that shall be furnished
to the Secretary by such Stockholder and have general charge of
the Stock Ledger of the Corporation; (v) when authorized by the
Board of Directors or the President, attest to or witness all
documents requiring the same; (vi) perform all duties as from
time to time may be assigned to him or her by the President or
by the Board of Directors; and (vii) perform all the duties
generally incident to the office of secretary of a corporation.
4.10 TREASURER. The Treasurer shall have the cus-
tody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositaries as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at the regular
meetings of the Board of Directors or whenever they may require
it, an account of all his or her transactions as Treasurer and
of the financial condition of the Corporation. The Board of
-33-
Directors may engage a custodian to perform some or all of the
duties of the Treasurer, and if a custodian is so engaged then
the Treasurer shall be relieved of the responsibilities set
forth herein to the extent delegated to such custodian and,
unless the Board of Directors otherwise determines, shall have
general supervision over the activities of such custodian. The
custodian shall not be an Officer of the Corporation.
4.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The Board of Directors may appoint one or more Assistant Secre-
taries or Assistant Treasurers. The Assistant Secretaries (i)
when authorized by the Board of Directors or the President,
shall have the power to attest to or witness all documents
requiring the same and (ii) shall perform such duties as shall
be assigned to them by the Secretary or by the President or the
Board of Directors. The Assistant Treasurers shall perform
such duties as shall be assigned to them by the Treasurer or by
the President or the Board of Directors.
4.12 OTHER OFFICERS. The Corporation shall have
such other Officers as the Board of Directors may from time to
time elect. Each such Officer shall hold office for such
period and perform such duties as the Board of Directors, the
President or any designated committee or Officer may prescribe.
-34-
4.13 SALARIES. The salaries, if any, of the Offic-
ers shall be fixed from time to time by the Board of Directors.
No Officer shall be prevented from receiving such salary, if
any, by reason of the fact that he or she is also a Director of
the Corporation.
ARTICLE V
SHARES OF STOCK
5.1 NO CERTIFICATES FOR STOCK. Unless the Board of
Directors authorizes the issuance of certificates pursuant to
Section 5.2, none of the Stock shall be represented by
certificates.
5.2 ELECTION TO ISSUE CERTIFICATES. The Board of
Directors may authorize the issuance of certificates represent-
ing some or all of the Shares of any or all of the classes or
series of Stock. If the Board of Directors so authorizes cer-
tificates, such certificates shall be of such form, not incon-
sistent with the Charter, as shall be approved by the Board of
Directors. All certificates, if issued, shall be signed by the
Chairman of the Board, the President or a Vice President and
countersigned by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary. Any signature or
counter-signature may be either a manual or facsimile
-35-
signature. All certificates, if issued, for each class of
stock shall be consecutively numbered.
5.3 STOCK LEDGER. The Corporation shall maintain at
its principal executive office, at the office of its counsel,
accountants or transfer agent or at such other place designated
by the Board of Directors an original or duplicate Stock Ledger
containing the names and addresses of all the Stockholders and
the number of shares of each class held by each Stockholder.
The Stock Ledger shall be maintained pursuant to a system that
the Corporation shall adopt allowing for the issuance, recorda-
tion and transfer of its Stock by electronic or other means
that can be readily converted into written form for visual
inspection and not involving any issuance of certificates.
Such system shall include provisions for notice to acquirers of
Stock (whether upon issuance or transfer of stock) in accor-
dance with Sections 2-210 and 2-211 of the Maryland General
Corporation Law, and Section 8-408 of the Commercial Law
Article of the State of Maryland. The Corporation shall be
entitled to treat the holder of record of any Share or Shares
as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest
in such share on the part of any other person, whether or not
it shall have express or other notice thereof, except as
-36-
otherwise provided by the laws of the State of Maryland. Until
a transfer is duly effected on the Stock Ledger, the Corpora-
tion shall not be affected by any notice of such transfer,
either actual or constructive. Nothing herein shall impose
upon the Corporation, the Board of Directors or Officers or
their agents and representatives a duty or limit their rights
to inquire as to the actual ownership of Shares.
5.4 RECORDING TRANSFERS OF STOCK. If transferred in
accordance with any restrictions on transfer contained in the
Charter, these Bylaws or otherwise, Shares shall be recorded as
transferred in the Stock Ledger upon provision to the Corpora-
tion or the transfer agent of the Corporation of an executed
stock power duly guaranteed and any other documents reasonably
requested by the Corporation and the surrender of the certifi-
cate or certificates, if any, representing such Shares. Upon
receipt of such documents, the Corporation shall issue the
statements required by Sections 2-210 and 2-211 of the Maryland
General Corporation Law and Sections 8-408 of the Commercial
Law Article of the State of Maryland, issue as needed a new
certificate or certificates (if the transferred Shares were
certificated) to the persons entitled thereto, cancel any old
certificates and record the transaction upon its books.
-37-
5.5 LOST CERTIFICATES. The Board of Directors may
direct a new certificate to be issued in the place of any cer-
tificate theretofore issued by the Corporation alleged to have
been stolen, lost or destroyed upon the making of an affidavit
of that fact by the person claiming the certificate of Stock to
be stolen, lost or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require
the owner of such stolen, lost or destroyed certificate or his
legal representative to advertise the same in such manner as it
shall require and/or to give bond, with sufficient surety, to
the Corporation to indemnify it against any loss or claim which
may arise by reason of the issuance of a new certificate.
5.6 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD
DATE.
5.6.1 The Board of Directors may fix, in advance, a
date as the record date for the purpose of determining Stock-
holders entitled to notice of, or to vote at, any meeting of
Stockholders, or Stockholders entitled to receive payment of
any dividend or the allotment of any rights, or in order to
make a determination of Stockholders for any other proper pur-
pose. Such date, in any case, shall not be prior to the close
-38-
of business on the day the record date is fixed and shall be
not more than sixty (60) days, and in case of a meeting of
Stockholders not less than ten (10) days, prior to the date on
which the meeting or particular action requiring such determi-
nation of Stockholders is to be held or taken.
5.6.2 If, in lieu of fixing a record date, the stock
transfer books are closed by the Board of Directors in accor-
dance with Section 2-511 of the Maryland General Corporation
Law for the purpose of determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders, such books
shall be closed for at least ten (10), but not more than twenty
(20) days immediately preceding such meeting.
5.6.3 If no record date is fixed and the stock
transfer books are not closed for the determination of Stock-
holders, (a) the record date for the determination of Stock-
holders entitled to notice of, or to vote at, a meeting of
Stockholders shall be at the close of business on the day on
which the notice of meeting is mailed or the 30th day before
the meeting, whichever is the closer date to the meeting; and
(b) the record date for the determination of Stockholders enti-
tled to receive payment of a dividend or an allotment of any
rights shall be at the close of business on the day on which
-39-
the resolution of the Board of Directors declaring the dividend
or allotment of rights is adopted.
5.6.4 When a determination of Stockholders entitled
to vote at any meeting of Stockholders has been made as pro-
vided in this section, such determination shall apply to any
adjournment thereof, except where the determination has been
made through the closing of the stock transfer books and the
stated period of closing has expired.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
6.1 DECLARATION. Dividends and other distributions
upon the Stock may be declared by the Board of Directors as set
forth in the applicable provisions of the Charter and any
applicable law, at any meeting, limited only to the extent of
Section 2-311 of the Maryland General Corporation Law. Divi-
dends and other distributions upon the Stock may be paid in
cash, property or Stock of the Corporation, subject to the pro-
visions of law and of the Charter.
6.2 CONTINGENCIES. Before payment of any dividends
or other distributions upon the Stock, there may be set aside
(but there is no duty to set aside) out of any funds of the
-40-
Corporation available for dividends or other distributions such
sum or sums as the Board of Directors may from time to time, in
its absolute discretion, think proper as a reserve fund to meet
contingencies, for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors
shall determine to be in the best interests of the Corporation,
and the Board of Directors may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION TO THE EXTENT PERMITTED BY LAW.
Unless the Board of Directors otherwise determines prospec-
tively in the case of any one or more specified individuals,
the Corporation shall indemnify, to the full extent permitted
by the Maryland General Corporation Law, any person who is or
was a Director or Officer of the Corporation, or is or was
serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture,
trust, or other enterprise (an "Indemnified Person"), including
the advancement of expenses under procedures provided under
such law; provided, however, that no indemnification shall be
provided for expenses relating to any willful or grossly
-41-
negligent failure to make disclosures required by the next to
last sentence of Section 2.2 or Section 4.3 hereof as applied
to Directors and Officers respectively.
7.2 INSURANCE. The Corporation shall have the power
to purchase and maintain insurance on behalf of any Indemnified
Person against any liability, whether or not the Corporation
would have the power to indemnify him or her against such
liability.
7.3 NON-EXCLUSIVE RIGHT TO INDEMNITY; HEIRS AND PER-
SONAL REPRESENTATIVES. The rights to indemnification set forth
in this Article VII are in addition to all rights to which any
Indemnified Person may be entitled as a matter of law, pursuant
to a resolution of the Stockholders or disinterested Directors
as agreed or otherwise, and shall inure to the benefit of the
heirs and personal representatives of each Indemnified Person.
7.4 NO LIMITATION. In addition to any indemnifica-
tion permitted by these Bylaws, the Board of Directors shall,
in its sole discretion, have the power to grant such indemnifi-
cation as it deems in the interest of the Corporation to the
full extent permitted by law. This Article shall not limit the
Corporation's power to indemnify against liabilities other than
-42-
those arising from a person's serving the Corporation as a
Director or Officer.
ARTICLE VIII
NOTICES
8.1 NOTICES. Whenever notice is required to be
given pursuant to these Bylaws, it shall be construed to mean
either written notice personally served against written receipt
or notice in writing transmitted by mail, by depositing the
same in a post office or letter box, in a post-paid sealed
wrapper, addressed, if to the Corporation, at 150 N. Wacker
Drive, Chicago, Illinois 60606 (or any subsequent address
selected by the Board of Directors), attention President, or if
to a Stockholder, Director or Officer, at the address of such
person as it appears on the books of the Corporation or in
default of any other address at the general post office situ-
ated in the city or county of his or her residence. Unless
otherwise specified, notice sent by mail shall be deemed to be
given at the time mailed.
8.2 SECRETARY TO GIVE NOTICE. All notices required
by law or these Bylaws to be given by the Corporation shall be
given by the Secretary or any other Officer of the Corporation
designated by the President. If the Secretary and Assistant
-43-
Secretary are absent or refuse or neglect to act, the notice
may be given by any person directed to do so by the President,
or with respect to any meeting called pursuant to these Bylaws
upon the request of any Stockholders or Directors, or by any
person directed to do so by the Stockholders or Directors upon
whose request the meeting is called.
8.3 WAIVER OF NOTICE. Whenever any notice is
required to be given pursuant to the Charter or these Bylaws or
pursuant to applicable law, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business
to be transacted nor the purpose of any meeting need be set
forth in the waiver of notice, unless specifically required by
statute. The attendance of any person at any meeting shall
constitute a waiver of notice of such meeting, except where
such person attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
-44-
ARTICLE IX
MISCELLANEOUS
9.1 BOOKS AND RECORDS. The Corporation shall keep
correct and complete books and records of its account and
transactions and minutes of the proceedings of its Stockholders
and Board of Directors and of its executive or other committees
when exercising any of the powers or authority of the Board of
Directors. The books and records of the Corporation may be in
written form or in any other form that may be converted within
a reasonable time into written form for visual inspection.
Minutes shall be recorded in written form, but may be main-
tained in the form of a reproduction.
9.2 INSPECTION OF BYLAWS AND CORPORATE RECORDS.
These Bylaws, the accounting books and records of the Corpora-
tion, the minutes of proceedings of the Stockholders, the Board
of Directors and committees thereof, annual statements of
affairs and voting trust agreements on record shall be open to
inspection upon written demand delivered to the Corporation by
any Stockholder or holder of a voting trust certificate at any
reasonable time during usual business hours, for a purpose rea-
sonably related to such holders' interests as a Stockholder or
-45-
as the holder of such voting trust certificate, in each case to
the extent permitted by the Maryland General Corporation Law.
9.3 CONTRACTS. The Board of Directors may authorize
any Officer(s) or agent(s) to enter into any contract or to
execute and deliver any instrument in the name of and on behalf
of the Corporation, and such authority may be general or con-
fined to specific instances.
9.4 CHECKS, DRAFTS, ETC. All checks, drafts, or
other orders for payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be
signed by such Officers or agents of the Corporation and in
such manner as shall from time to time be determined by resolu-
tion of the Board of Directors.
9.5 LOANS.
9.5.1 Such Officers or agents of the Corporation as
from time to time have been designated by the Board of Direc-
tors shall have authority (i) to effect loans, advances or
other forms of credit at any time or times for the Corporation,
from such banks, trust companies, institutions, corporations,
firms or persons, in such amounts and subject to such terms and
conditions, as the Board of Directors from time to time has
-46-
designated; (ii) as security for the repayment of any loans,
advance or other forms of credit so authorized, to assign,
transfer, endorse and deliver, either originally or in addition
or substitution, any or all personal property, real property,
stocks, bonds, deposits, accounts, documents, bills, accounts
receivable and other commercial paper and evidence of debt or
other securities, or any rights or interests at any time held
by the Corporation; (iii) in connection with any loans,
advances or other forms of credit so authorized, to make, exe-
cute and deliver one or more notes, mortgages, deeds of trust,
financing statements, security agreements, acceptances or writ-
ten obligations of the Corporation, on such terms and with such
provisions as to the security or sale or disposition of them as
those Officers or agents deem proper; and (iv) to sell to, or
discount or rediscount with, the banks, trust companies, insti-
tutions, corporations, firms or persons making those loans,
advances or other forms of credit any and all commercial paper,
bills, accounts receivable, acceptances and other instruments
and evidences of debt at any time held by the Corporation, and,
to that end, to endorse, transfer and deliver the same.
9.5.2 From time to time the Corporation shall cer-
tify to each bank, trust company, institution, corporation,
firm or person so designated the signatures of the Officers or
-47-
agents so authorized. Each bank, trust company, institution,
corporation, firm or person so designated is authorized to rely
upon such certification until it has received written notice
that the Board of Directors has revoked the authority of those
Officers or agents.
9.6 FISCAL YEAR. The Board of Directors shall have
the power, from time to time, to fix the fiscal year of the
Corporation by a duly adopted resolution, and, in the absence
of such resolution, the fiscal year shall be the period ending
December 31.
9.7 ANNUAL REPORT. Not later than 120 days after
the close of each fiscal year, the Board of Directors of the
Corporation shall cause to be sent to the Stockholders an
Annual Report in such form as may be deemed appropriate by the
Board of Directors. The Annual Report shall include audited
financial statements and shall be accompanied by the report
thereon of an independent certified public accountant.
9.8 INTERIM REPORTS. The Corporation may send
interim reports to the Stockholders having such form and con-
tent as the Board of Directors deems proper.
-48-
9.9 OTHER REPORTS. Any distributions to Stockhold-
ers of income or capital assets shall be accompanied by a writ-
ten statement disclosing the source of the funds distributed
unless at the time of distribution they are accompanied by a
written explanation of the relevant circumstances. The state-
ment as to such source shall be sent to Stockholders not later
than sixty (60) days after the close of the fiscal year in
which the distributions were made.
9.10 BYLAWS SEVERABLE. The provisions of these
Bylaws are severable, and if any provision shall be held
invalid or unenforceable, that invalidity or unenforceability
shall attach only to that provision and shall not in any manner
affect or render invalid or unenforceable any other provision
of these Bylaws, and these Bylaws shall be carried out as if
the invalid or unenforceable provision were not contained
herein.
ARTICLE X
AMENDMENT OF BYLAWS
10.1 BY DIRECTORS. The Board of Directors shall
have the power, at any annual or regular meeting, or at any
special meeting if notice thereof is included in the notice of
such special meeting, to alter or repeal any Bylaws of the
-49-
Corporation and to make new Bylaws; provided, that no altera-
tion or repeal of Section 7.1 may affect the rights of any
Indemnified Persons to indemnification arising, and in connec-
tion with conduct, prior to such amendment; and, provided, fur-
ther, that the Board of Directors shall not alter or repeal
this Section 10.1 or Section 10.2.
10.2 BY STOCKHOLDERS. The Stockholders, by affirma-
tive vote of a majority of the shares of common stock of the
Corporation, shall have the power, at any annual meeting (sub-
ject to the requirements of Section 1.3), or at any special
meeting if notice thereof if included in the notice of such
special meeting, to alter or repeal any Bylaws of the Corpora-
tion and to make new Bylaws; provided, that no alteration or
repeal of Section 7.1 may affect the rights of any Indemnified
Person to indemnification arising, and in connection with con-
duct, prior to such amendment; and, provided, further, that the
Stockholders shall not alter or repeal Section 10.1 or this
Section 10.2.
The foregoing are certified as the Bylaws of the Cor-
poration adopted by the Board of Directors as of the 5th day of
September, 1996.
[Letterhead of Cahill Gordon & Reindel]
October 1, 1996
(212) 701-3000
First Industrial Realty Trust, Inc.
150 N. Wacker Drive, Suite 150
Chicago, IL 60606
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for First Industrial Realty
Trust, Inc. (the "Company") in connection with the Registration
Statement on Form S-3 (the "Registration Statement"), filed by the
Company with the Securities and Exchange Commission (the "Commission")
for registration under the Securities Act of 1933, as amended (the
"Securities Act"), of shares of the Company's common stock, par
value $0.01 per share (the "Common Stock"), to be offered from
time to time by the Company for aggregate proceeds of up to
$200,000,000. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to such terms 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 Amended and Restated Articles of
-2-
Incorporation and Bylaws of the Company, each as amended,
resolutions of the Board of Directors of the Company with respect
to the filing of the Registration Statement and such other
documents as we have deemed necessary or appropriate for the
purpose of rendering this opinion.
In our examination of documents, instruments and other
papers, we have assumed the genuineness of all signatures on
original and certified documents and the conformity to original
and certified documents of all copies submitted to us as
conformed, photostatic or other copies. As to matters of fact, we
have relied upon representations of officers of the Company.
Based upon the foregoing examination, information
supplied and assumptions, it is our opinion that, when
specifically authorized for issuance by the Company's Board of
Directors or an authorized committee thereof (an "Authorizing
Resolution"), and when issued as described in the Registration
Statement and a prospectus supplement to the prospectus contained
in the Registration Statement which is consistent with such
Authorizing Resolution, and upon receipt by the Company of the
consideration provided for in such Authorizing Resolution, the
Common Stock will be duly authorized, validly issued, fully paid
and non-assessable.
We are attorneys admitted to practice in the State of
New York. We express no opinion concerning the laws of any
jurisdiction other than the laws of the United States of America
and the State of New York. With respect to matters of Maryland
law, we have relied, without independent investigation, upon the
opinion of McGuire, Woods, Battle & Boothe, LLP a copy of which is
attached hereto.
We hereby consent to the reference to our firm in the
Registration Statement under the caption "Legal Matters" and to
the inclusion 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 as 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 Commission thereunder.
Very truly yours,
/s/ Cahill Gordon & Reindel
[Letterhead of McGuire, Woods, Battle & Boothe, LLP]
October 1, 1996
First Industrial Realty Trust, Inc.
150 N. Wacker Drive, Suite 150
Chicago, Illinois 60606
Re: Form S-3 filed by First Industrial
Realty Trust, Inc. for Registration
of Shares Up to $200,000,000
-----------------------------------
Ladies and Gentlemen:
This opinion is furnished as special Maryland counsel
in connection with the registration statement on Form S-3 (the
"Registration Statement"), filed by First Industrial Realty
Trust, Inc., a Maryland corporation (the "Company"), pursuant
to the Securities Act of 1933, as amended (the "Securities
Act"), for registration of an undetermined number of shares of
the Company's common stock, par value $.01 per share (the "Com-
mon Stock"), to be offered from time to time by the Company for
aggregate proceeds of up to $200,000,000.
In connection with rendering this opinion, we have
examined originals, or copies certified or otherwise identified
to our satisfaction, of the Articles of Amendment and Restate-
ment of the Company, dated June 13, 1994, the Articles of
Amendment of the Company, dated June 21, 1994, and the Articles
of Amendment of the Company, dated May 31, 1996; the Amended
and Restated Bylaws of the Company, as amended to date; resolu-
tions of the board of directors of the Company; the Registra-
tion Statement; a Certificate of Good Standing for the Company
dated September 19, 1996, and issued by the State Department of
Assessments and Taxation of Maryland; and such other certifi-
cates, receipts, records and documents relating to the Company,
the issuance of the Common Stock, and the sale of the Common
Stock covered by the Registration Statement as we considered
necessary for the purposes of rendering this opinion.
-2-
First Industrial Realty Trust, Inc.
October 1, 1996
Page 2
In conducting our examination, we have assumed
(i) the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to
originals of all documents submitted to us as copies and
(ii) prior to the issuance of any of the Common Stock, the
board of directors of the Company, or a duly authorized commit-
tee of the board, will adopt one or more resolutions (each an
"Authorizing Resolution") authorizing the issuance and setting
a minimum price for the Common Stock or a formula for determin-
ing such price. As to matters of fact which have not been
independently established, we have relied upon representations
of officers of the Company.
We are attorneys admitted to practice in the State of
Maryland. We express no opinion concerning the laws of any
jurisdictions other than the laws of the United States of Amer-
ica and the State of Maryland.
Based upon the foregoing, we are of the opinion that,
when specifically authorized for issuance by an Authorizing
Resolution, and when issued as described in the Registration
Statement and a prospectus supplement to the prospectus con-
tained in the Registration Statement which is consistent with
an Authorizing Resolution, and upon receipt by the Company of
the consideration provided for in an Authorizing Resolution,
the Common Stock will be 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.
This opinion may be relied upon by Messrs. Cahill
Gordon & Reindel with respect to that firm's opinion to be
filed as an exhibit to the Registration Statement. In addi-
tion, we hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to
our firm under the caption "Legal Matters" in the Prospectus.
Our consent to such reference does not constitute a consent
under Section 7 of the Securities Act as in consenting to such
reference we have not certified any part of the Registration
Statement and do not otherwise come within the categories of
-3-
First Industrial Realty Trust, Inc.
October 1, 1996
Page 3
persons whose consent is required under Section 7 or under the
rules and regulations of the Commission thereunder.
Very truly yours,
/s/MCQUIRE, WOODS, BATTLE & BOOTHE, LLP
---------------------------------------
MCQUIRE, WOODS, BATTLE & BOOTHE, LLP
[Letterhead of Cahill Gordon & Reindel]
October 1, 1996
(212) 701-3000
First Industrial Realty Trust, Inc.
150 North Wacker Drive, Suite 150
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as tax counsel to First Industrial
Realty Trust, Inc. (the "Company") in connection with the
Form S-3 Registration Statement filed by the Company with the
Securities and Exchange Commission on October 1, 1996, as
amended through the date hereof and including the documents
incorporated by reference therein (the "Registration State-
ment").* We have been asked to provide our opinion on cer-
tain federal income tax matters arising under the Internal
Revenue Code of 1986, as amended (the "Code"), relating to
_________________________
* Capitalized terms used in this letter that are not otherwise
defined herein have the meanings ascribed to them in the
Registration Statement.
-2-
the Company's qualification for taxation as a real estate
investment trust (a "REIT") under the Code.
The opinions set forth in this letter are based on
relevant provisions of the Code, Treasury Regulations there-
under (including proposed and temporary Regulations) and
interpretations of the foregoing as expressed in court deci-
sions and administrative determinations as of the date
hereof. These provisions and interpretations are subject to
changes that might result in modifications of our opinions.
For purposes of rendering the opinions contained in
this letter, we have reviewed (i) the Registration Statement;
(ii) the Articles of Incorporation of each of the Company,
First Industrial Finance Corporation (the "Financing Partner-
ship Subsidiary"), First Industrial Management Corporation
(the "Mortgage Loan Properties Management Company"), First
Industrial Third-Party Management Corporation ("First Indus-
trial Management"), First Industrial Enterprises of Michigan,
Inc. ("Damone/Andrew"), First Industrial Pennsylvania Corpo-
ration ("First Industrial Pennsylvania"), First Industrial
Harrisburg Corporation ("First Industrial Harrisburg"), First
Industrial Securities Corporation ("First Industrial Securi-
ties"), First Industrial Mortgage Corporation ("First Indus-
trial Mortgage"), FR Acquisitions, Inc. ("FR Acquisitions"),
First Industrial Indianapolis Corporation ("First Industrial
Indianapolis") and First Industrial Development Services,
Inc. ("First Industrial Development"); (iii) the partnership
agreement of each of First Industrial, L.P. (the "Operating
Partnership"), First Industrial Financing Partnership, L.P.
(the "Financing Partnership"), First Industrial Securities,
L.P. (the "Securities Partnership"), First Industrial Penn-
sylvania, L.P. (the "Pennsylvania Partnership"), First Indus-
trial Harrisburg, L.P. (the "Harrisburg Partnership"), First
Industrial Mortgage Partnership, L.P. (the "Mortgage Partner-
ship") and First Industrial Indianapolis, L.P. (the "India-
napolis Partnership"); and (iv) such other documents, law and
facts as we have deemed necessary to render the opinions set
forth in this letter. In our review, we have assumed the
genuineness of all signatures; the proper execution of all
documents; the authenticity of all documents submitted to us
as originals; the conformity to originals of all documents
submitted to us as copies; and the authenticity of the origi-
nals of any copies.
In addition, for purposes of rendering the opinions
set forth herein, we have assumed that (i) each of the
-3-
Company, the Financing Partnership Subsidiary, the Mortgage
Loan Properties Management Company, First Industrial Manage-
ment, First Industrial Pennsylvania, First Industrial Harris-
burg, First Industrial Securities, First Industrial Mortgage,
FR Acquisitions, First Industrial Indianpolis and First
Industrial Development is a validly organized and duly incor-
porated corporation under the laws of the State of Maryland;
(ii) Damone/Andrew is a validly organized and duly incorpo-
rated corporation under the laws of the State of Michigan;
and (iii) each of the Operating Partnership, the Financing
Partnership, the Pennsylvania Partnership, the Harrisburg
Partnership, the Securities Partnership and the Mortgage
Partnership is a duly organized and validly existing limited
partnership subject to the Delaware Revised Uniform Limited
Partnership Act.
These opinions also are premised on certain written
representations made by (i) the Company, both in its capacity
as a corporate entity and as general partner of the Operating
Partnership; (ii) the Financing Partnership Subsidiary in its
capacity as general partner of the Financing Partnership;
(iii) First Industrial Pennsylvania in its capacity as gen-
eral partner of the Pennsylvania Partnership; (iv) First
Industrial Harrisburg in its capacity as general partner of
the Harrisburg Partnership; (v) First Industrial Securities
in its capacity as general partner of the Securities Partner-
ship; (vi) First Industrial Mortgage in its capacity as gen-
eral partner of the Mortgage Partnership and (vii) First
Industrial Indianapolis in its capacity as general partner of
the Indianapolis Partnership, in certificates dated the date
hereof (the "Certificates"). For purposes of our opinions,
we have not made an independent investigation of the repre-
sentations contained in the Certificates, and consequently we
have relied on the representations therein that the informa-
tion contained in the Certificates or otherwise furnished to
us accurately describes all material facts relevant to our
opinions.
Based upon and subject to the foregoing, we are of
the opinion that:
(i) The Operating Partnership, the Financing Part-
nership, the Pennsylvania Partnership, the Harrisburg Part-
nership, the Securities Partnership, the Mortgage Partnership
and the Indianapolis Partnership will be treated as partner-
ships for federal income tax purposes and not as associations
taxable as corporations.
-4-
(ii) Commencing with the Company's taxable year
ended on December 31, 1994, the Company has been organized in
conformity with the requirements for qualification as a REIT
under the Code, and the Company's method of operation, as
described in the Registration Statement and as set forth in
the Certificates, will enable it to meet the requirements for
qualification and taxation as a REIT, provided that the Com-
pany continues to satisfy the applicable asset composition,
source of income, shareholder diversification, distribution,
recordkeeping and other requirements of the Code necessary
for a corporation to qualify as a REIT.
(iii) The information in the Registration Statement
under the heading "Certain Federal Income Tax Consider-
ations", to the extent that such information constitutes con-
clusions of law, has been reviewed by us and is correct in
all material respects.
We express no opinion with respect to the matters
described herein or in the Registration Statement other than
those expressly set forth herein. Our opinions are not bind-
ing on the Internal Revenue Service (the "IRS") and the IRS
may disagree with the opinions contained herein. Although we
believe that our opinions would be sustained if challenged,
there can be no assurance that this will be the case. The
opinions expressed herein are based upon the law as it cur-
rently exists. Consequently, future changes in the law may
cause the federal income tax treatment of the matters
referred to herein to be materially and adversely different
from that described above. In addition, any variation in the
facts from those set forth in the Registration Statement, the
representations contained in the Certificates or otherwise
provided to us may affect the conclusions stated herein.
Moreover, the Company's qualification and taxation as a REIT
depends upon the Company's ability to meet, through actual
annual operating results, distribution levels, diversity of
stock ownership and various other qualification tests imposed
under the Code, none of which will be reviewed by us.
Accordingly, no assurance can be given that the actual
results of the Company's operations for any taxable year will
satisfy the requirements for the Company to maintain its
qualification as a REIT.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement and to the reference
to our firm therein as counsel to the Company. Our consent
to such reference does not constitute a consent under Section
-5-
7 of the Securities Act of 1933, as amended, as in consenting
to such reference we have not certified any part of the Reg-
istration Statement and do not otherwise come within the cat-
egories of persons whose consent is required under such Sec-
tion 7 or under the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
/s/ Cahill Gordon & Reindel
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our report dated
March 15, 1996, on our audits of the consolidated financial
statements and the financial statement schedule of First Indus-
trial Realty Trust, Inc. and the combined financial statements
of the Contributing Businesses which is included in the 1995
Annual Report on Form 10-K, and our report dated May 13, 1996
on our audits of the combined historical statements of revenues
and certain expenses of First Highland Properties and the Other
Acquisition Properties which is included in the Form 8-K/A
No. 1 filed May 17, 1996. We also consent to the reference to
our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
----------------------------
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
September 30, 1996
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 26, 1996
/s/Michael G. Damone
--------------------
Michael G. Damone,
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 20, 1996
/s/Robert J. Slater
-------------------
Robert J. Slater,
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 19, 1996
/s/Kevin W. Lynch
-----------------
Kevin W. Lynch,
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 20, 1996
/s/Michael W. Brennan
----------------------
Michael W. Brennan,
Chief Operating Officer
and Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 20, 1996
/s/J. Steven Wilson
-------------------
J. Steven Wilson,
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 20, 1996
/s/Michael T. Tomasz
---------------------------
Michael T. Tomasz,
Principal Executive Officer
and Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all amend-
ments (including post-effective amendments) thereto, and any
related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of com-
mon stock, preferred stock, depositary shares and/or unsecured
debt securities, which the Company may offer from time to time
in one or more series, with an aggregate public offering price
of up to $200,000,000, in amounts, at prices and on terms to be
determined at the time of offering, and generally to do all
such things in such capacities to enable the Company to comply
with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming my signature as it may be
signed by my said attorneys, or any of them, to said Registra-
tion Statement and any and all amendments (including
post-effective amendments) thereto, and any related Registra-
tion Statement to be filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 20, 1996
/s/Jay H. Shidler
---------------------
Jay H. Shidler,
Chairman of the Board
of Directors
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 23, 1996
/s/John E. Rau
--------------
John E. Rau,
Director
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
director and/or officer of First Industrial Realty Trust, Inc.,
a corporation organized under the laws of the State of Maryland
(the "Company"), hereby constitutes and appoints Michael T.
Tomasz, Michael W. Brennan and Michael J. Havala, and each of
them (with full power to each of them to act alone), my true
and lawful attorneys-in-fact with full power to them, and each
of them (with full power to each of them to act alone), to sign
for me and in my name in the capacities indicated below, a
Shelf Registration Statement on Form S-3 and any and all
amendments (including post-effective amendments) thereto, and
any related Registration Statement to be filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, with
respect to the registration of an indeterminate amount of
common stock, preferred stock, depositary shares and/or
unsecured debt securities, which the Company may offer from
time to time in one or more series, with an aggregate public
offering price of up to $200,000,000, in amounts, at prices and
on terms to be determined at the time of offering, and
generally to do all such things in such capacities to enable
the Company to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming my
signature as it may be signed by my said attorneys, or any of
them, to said Registration Statement and any and all amendments
(including post-effective amendments) thereto, and any related
Registration Statement to be filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the undersigned director and/or
officer has hereunto set his hand, as of the date specified.
Dated: September 20, 1996
/s/Michael J. Havala
------------------------
Michael J. Havala,
Principal Financial
and Accounting Officer