1
As filed with the Securities and Exchange Commission on December 23, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN INDUSTRIAL PROPERTIES REIT
(Exact Name of Registrant as Specified in its Charter)
TEXAS 75-6335572
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
6210 N. BELTLINE ROAD 75063
SUITE 170 (Zip Code)
IRVING, TEXAS
(Address of Principal
Executive Officers)
DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE TRUST MANAGERS
(Full Title of the Plan)
CHARLES W. WOLCOTT
CHIEF EXECUTIVE OFFICER
AMERICAN INDUSTRIAL PROPERTIES REIT
6210 N. BELTLINE, SUITE 170
IRVING, TEXAS 75063
(Name and Address of Agent for Service)
(972) 756-6000
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
BRYAN L. GOOLSBY
GINA E. BETTS
LIDDELL, SAPP, ZIVLEY, HILL
& LABOON, L.L.P.
2001 ROSS AVENUE, SUITE 3000
DALLAS, TEXAS 75201
(214) 849-5500
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to be Amount to be Offering Price Per Aggregate Registration
registered Registered Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------------------
Deferred Compensation $1,000,000 N/A N/A $278
Obligations (1)
=================================================================================================================
(1) Represents obligations of the Registrant to make distributions of deferred
compensation in the future in cash in accordance with the terms of the
Deferred Compensation Plan for Non-Employee Trust Managers of the
Registrant (the "Plan").
2
REGISTRATION STATEMENT ON FORM S-8
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in a prospectus
meeting the requirements of Section 10(a) of the Securities Act of 1933 is
omitted from this Registration Statement in accordance with the Note to
Part I of Form S-8.
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated by reference in this Registration Statement are the
following documents filed with the Securities and Exchange Commission (the
"Commission"):
(a) American Industrial Properties REIT's (the "Trust") Annual Report
on Form 10-K for the fiscal year ended December 31, 1997;
(b) The Trust's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998; and
(c) The Trust's Current Reports on Form 8-K, including any amendments
thereto, filed on January 20, 1998, February 13, 1998, February
25, 1998, March 23, 1998, April 20, 1998, May 14, 1998, May 22,
1998, June 17, 1998, August 5, 1998, September 17, 1998, October
23, 1998, October 29, 1998 and November 24, 1998.
All documents subsequently filed by the Trust pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall also be deemed to be incorporated by
reference herein and to be a part hereof from the date of 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 Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The obligations registered hereunder (the "Obligations") are general,
unsecured obligations of the Trust to pay deferred compensation in the future in
accordance with the terms of the Trust's Deferred Compensation Plan for Non-
Employee Trust Managers (the "Plan"), which is filed as Exhibit 4 to this
Registration Statement. The Plan sets forth a description of the Obligations and
is incorporated herein by reference in its entirety in response to this Item 4,
pursuant to Rule 411(b)(3) promulgated under the Securities Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsections (B) and (O) of Section 9.20 of the Texas Real Estate
Investment Trust Act, as amended (the "Act"), empowers a real estate investment
trust to indemnify any person who was, is, or is threatened to be made a named
defendant or respondent in any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, or any inquiry
or investigation that can lead to such an action, suit or proceeding because the
person is or was a trust manager, officer, employee or agent of the real estate
investment trust or is or was serving at the request of the real estate
investment trust as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another real
estate investment trust, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, against
expenses (including court costs and attorney fees), judgments, penalties, fines
and settlements provided that he conducted himself in good faith and reasonably
believed his conduct was in, or in the case
4
of non-trust manager indemnitees, not opposed to, the best interests of the real
estate investment trust, and in the case of any criminal proceeding, had no
reasonable cause to believe that his conduct was unlawful.
The Act further provides that, except to the extent otherwise permitted
by the Act, a person may not be indemnified in respect of a proceeding in which
the person is found liable on the basis that personal benefit was improperly
received by him or in which the person is found liable to the real estate
investment trust. Indemnification pursuant to Subsection (B) of Section 9.20 of
the Act is limited to reasonable expenses actually incurred and may not be made
in respect of any proceeding in which the person has been found liable for
willful or intentional misconduct in the performance of his duty to the real
estate investment trust if he is found liable to the real estate investment
trust or liable on the basis that an improper personal benefit was received.
Subsection (C) of Section 15.10 of the Act provides that a trust
manager shall not be liable for any claims or damages that may result from his
acts in the discharge of any duty imposed or power conferred upon him by the
real estate investment trust, if, in the exercise of ordinary care, he acted in
good faith and in reliance upon information, opinions, reports, or statements,
including financial statements and other financial data, concerning the real
estate investment trust, that were prepared or presented by officers or
employees of the real estate investment trust, legal counsel, public
accountants, investment bankers, or certain other professionals, or a committee
of trust manager of which the trust manager is not a member. In addition, no
trust manager shall be liable to the real estate investment trust for any act,
omission, loss, damage, or expense arising from the performance of his duty to a
real estate investment trust, save only for his own willful misfeasance, willful
malfeasance or gross negligence.
Article Sixteen of the Trust's Third Amended and Restated Declaration
of Trust provides that the Trust shall indemnify officers and trust managers, as
set forth below:
(a) The Trust shall indemnify, to the fullest extent that
indemnification is permitted by Texas law in accordance with the
Trust's Bylaws, every person who is or was a trust manager or officer
of the Trust and any person who is or was serving at the request of the
Trust or its corporate predecessor as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary
of another real estate investment trust, foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise with respect to all
reasonable costs and expenses incurred by such person as a result of
such person being made or threatened to be made a defendant or
respondent in an action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such
action, suit or proceeding, and any inquiry or investigation that could
lead to such an action, suit or proceeding, by reason of his holding or
having held a position named above in this paragraph as well as against
all judgments, penalties, fines and amounts paid in settlement.
(b) If the indemnification provided in paragraph (a) is either
(i) insufficient to cover all costs and expenses incurred by any person
named in such paragraph as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named in such paragraph
or (ii) not permitted by Texas law, the Trust shall indemnify, to the
fullest extent that indemnification is permitted by Texas law, every
person who is or was a trust manager or officer of the Trust and any
person who is or was serving at the request of the Trust or its
corporate predecessor as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another
real estate investment trust, foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise with respect to all costs and expenses
incurred by such person as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named above in this
paragraph.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
5
ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
3.1 The Trust's Third Amended and Restated Declaration of Trust
(filed as Exhibit 3.1 to the Trust's Registration Statement on
Form S-4 dated July 22, 1997 (Registration No. 33-31823), and
incorporated by reference herein)
3.2 The Trust's Fifth Amended and Restated Bylaws (filed as
Exhibit 3.1 to the Trust's Current Report on Form 8-K dated
January 29, 1998 (File No. 1-09016) and incorporated by
reference herein)
4 The Trust's Deferred Compensation Plan for Non-Employee Trust
Managers
5 Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
23.1 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
(included in their opinion filed as Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Easley, Endres, Parkhill & Brackendorff, P.C.
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of Deloitte & Touche LLP
23.6 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included on signature page)
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes as follows:
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 and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
4. That, for 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
6
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.
5. To deliver or cause to be delivered with the prospectus, to each
person whom the prospectus is sent or given, the latest annual report, to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act or 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
6. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Dallas, state of Texas, on this 21st day of December,
1998.
AMERICAN INDUSTRIAL PROPERTIES REIT
By: /s/ Charles W. Wolcott
-------------------------------------
Charles W. Wolcott
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. Each of the undersigned officers and
directors of the registrant hereby constitutes Charles W. Wolcott and Marc A.
Simpson, any of whom may act, his true and lawful attorneys-in-fact with full
power to sign for him and in his name in the capacities indicated below and to
file any and all amendments to the registration statement filed herewith, making
such changes in the registration statement as the registrant deems appropriate,
and generally to do all such things in his name and behalf in his capacity as an
officer and director to enable the registrant to comply with the provision of
the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
Signature Title Date
- --------- ----- ----
/s/ Charles W. Wolcott Trust Manager, President and Chief December 21, 1998
- --------------------------------------- Executive Officer (Principal Executive
Charles W. Wolcott Officer)
/s/ Marc A. Simpson Senior Vice President and Chief Financial December 21, 1998
- --------------------------------------- Officer, Secretary and Treasurer
Marc A. Simpson (Principal Financial and Accounting
Officer)
/s/ Scott A. Wolstein Trust Manager, Chairman of the Board of December 21, 1998
- --------------------------------------- Trust Managers
Scott A. Wolstein
/s/ Albert T. Adams Trust Manager December 21, 1998
- ---------------------------------------
Albert T. Adams
/s/ William H. Bricker Trust Manager December 21, 1998
- ---------------------------------------
William H. Bricker
/s/ T. Patrick Duncan Trust Manager December 21, 1998
- ---------------------------------------
T. Patrick Duncan
/s/ Robert H. Gidel Trust Manager December 21, 1998
- ---------------------------------------
Robert H. Gidel
/s/ Robert E. Giles Trust Manager December 21, 1998
- ---------------------------------------
Robert E. Giles
/s/ Edward B. Kelley Trust Manager December 21, 1998
- ---------------------------------------
Edward B. Kelley
/s/ Stanley J. Kraska, Jr. Trust Manager December 21, 1998
- ---------------------------------------
Stanley J. Kraska, Jr.
/s/ Russell C. Platt Trust Manager December 21, 1998
- ---------------------------------------
Russell C. Platt
/s/ James A. Schoff Trust Manager December 21, 1998
- ---------------------------------------
James A. Schoff
8
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
3.1 The Trust's Third Amended and Restated Declaration of Trust
(filed as Exhibit 3.1 to the Trust's Registration Statement on
Form S-4 dated July 22, 1997 (Registration No. 33-31823), and
incorporated by reference herein)
3.2 The Trust's Fifth Amended and Restated Bylaws (filed as
Exhibit 3.1 to the Trust's Current Report on Form 8-K dated
January 29, 1998 (File No. 1-09016) and incorporated by
reference herein)
4 The Trust's Deferred Compensation Plan for Non-Employee Trust
Managers
5 Opinion of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
23.1 Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
(included in their opinion filed as Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Easley, Endres, Parkhill & Brackendorff, P.C.
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of Deloitte & Touche LLP
23.6 Consent of PricewaterhouseCoopers LLP
24 Powers of Attorney (included on signature page)