REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of April
29, 1998 by and between First Industrial Realty Trust, Inc., a Maryland
corporation (the "Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (the "Initial Purchaser") pursuant to the Purchase Agreement dated
as of April 23, 1998 (the "Purchase Agreement") between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration and other
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Shares (as defined herein) (each
of the foregoing, a "Holder" and together the "Holders"), it being understood
that for purposes of this Agreement the term "beneficial owner" shall not mean
any person holding an interest in a unit investment trust solely by reason of
such holding, as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
Affiliate means with respect to any specified person, an "affiliate" of
such person as defined in Rule 144(a)(1).
Amendment Effectiveness Deadline Date has the meaning set forth in
Section 3(d) hereof.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Common Stock means the shares of common stock, $.01 par value per
share, of the Company.
Deferral Notice has the meaning set forth in Section 4(i) hereof.
Deferral Period means the period during which the availability of any
Registration Statement and Prospectus is suspended pursuant to Section 4(i)
hereof.
Effectiveness Deadline Date has the meaning set forth in Section 3(a)
hereof.
Effectiveness Period means the period commencing with the date hereof
and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
Exchange Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Filing Deadline Date has the meaning set forth in Section 3(a) hereof.
Holder has the meaning set forth in the second paragraph of this
Agreement.
Initial Purchaser has the meaning set forth in the first paragraph of
this Agreement.
Initial Shelf Registration Statement has the meaning set forth in
Section 3(a) hereof.
Material Event has the meaning set forth in Section 4(i) hereof.
Notice and Questionnaire means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Appendix A hereto.
Notice Holder means on any date any Holder that has delivered a duly
completed Notice and Questionnaire to the Company on or prior to such date.
Prospectus means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference in such
Prospectus.
Purchase Agreement has the meaning set forth in the first paragraph of
this Agreement.
Registrable Securities means the Shares and any securities into or for
which the Shares have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security (A) the earliest of (i) its sale under an effective
Registration Statement, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) were it not held by an affiliate of the
Company or (iii) its sale pursuant to Rule 144 and (B) as a result of the event
or circumstance described in the foregoing clauses (A)(i) through (A)(iii), the
legends with respect to transfer restrictions required pursuant to the Purchase
Agreement are removed or removable (x) (i) due to compliance with the terms of
Rule 144 or (ii) pursuant to an effective Registration Statement and (y) the
policies and procedures of the Transfer Agent and Registrar.
Registration Statement means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference in such registration statement.
Rule 144 means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Sale Notice has the meaning set forth in Section 2(b) hereof.
SEC means the Securities and Exchange Commission.
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Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shares means the shares of Common Stock to be purchased by the Initial
Purchaser pursuant to the Purchase Agreement.
Shelf Registration Statement means the Initial Shelf Registration
Statement or a Subsequent Shelf Registration Statement.
Subsequent Shelf Registration Statement has the meaning set forth in
Section 3(b) hereof.
Transfer Agent and Registrar means First Chicago Trust Company of New
York (or any successor entity), as the transfer agent and registrar for the
Common Stock.
SECTION 2. Sales of Registrable Securities. (a) At any time prior to
the expiration of the Effectiveness Period, if a Registration Statement is not
then in effect (other than because of a Deferral Period), upon notice (a "Sale
Notice") from any such Notice Holder of such Notice Holder's intent to sell such
Registrable Securities (which notice shall indicate the number of Registrable
Securities to be sold), the Company shall have the following rights and
obligations with respect to such Sale Notice and the sale and/or purchase of
such Registrable Securities:
(i) (x) If the Sale Notice is delivered to the Company
prior to 5:00 P.M. Eastern time on any Business Day, the Company shall
have until the close of trading on the first succeeding Business Day on
which trading of the Common Stock occurs on the principal exchange or
quotation system on which the Common Stock is traded or quoted to offer
to purchase the Registrable Securities at a price per share in cash
equal to the closing sales price for the Common Stock on the principal
exchange or quotation system for the Common Stock (the "Exchange") on
the date of such Sale Notice (or at such other price mutually agreed
between the Company and the relevant Notice Holder); or
(y) If the Sale Notice is delivered to the Company
after 5:00 P.M. Eastern time on any Business Day (or at any time on any
day which is not a Business Day), the Company shall have until the
commencement of trading on the earlier of (i) the second succeeding
Business Day on which trading of the Common Stock occurs on the
principal exchange or quotation system on which the Common Stock is
traded or quoted or (ii) the second succeeding Business Day to offer to
purchase the Registrable Securities at a price per share in cash equal
to the closing sales price for the Common Stock on the Exchange on the
last day on which trading of the Common Stock occurs thereon prior to
the date of such Sale Notice (or at such other price mutually agreed
between the Company and the relevant Notice Holder).
(ii) If the Company shall have offered to purchase the
relevant Registrable Securities in accordance with Section 2(b)(i)
hereof, the Company shall be obligated to purchase, and the relevant
Notice Holder shall be obligated to sell, such Registrable Securities,
with settlement to occur in accordance with the rules and regulations
of the SEC and the principal exchange or quotation system on which the
Common Stock is traded or quoted, and the Company and the relevant
Notice Holder shall enter into customary documentation appropriate to
such purchase and sale.
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(iii) If the Company shall have failed to offer to purchase
the relevant Registrable Securities pursuant to Section 2(b)(i) hereof,
the relevant Notice Holder shall be entitled to negotiate and enter
into a contract for the sale of the relevant Registrable Securities
(for cash) with any other party in its commercially reasonable
discretion. In connection with the negotiation and execution of any
sale contract pursuant to this Section 2(b)(iii), if requested, and if
customary for "due diligence" examinations conducted in connection with
the type of sale being completed, the Company agrees to (a) make
reasonably available for inspection by the relevant Notice Holder and
any parties to whom such Notice Holder intends to sell Registrable
Securities and any attorneys and accountants retained by any such
party, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and (b)
cause the executive officers, directors and designated employees of the
Company and its subsidiaries to make reasonably available for
inspection all relevant information reasonably requested by such
parties or any such attorneys or accountants in connection with such
sale; provided that any information that is designated by the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such parties or any such
attorney or accountant, unless such disclosure is made in connection
with a court proceeding or is required by law, or such information
becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality.
(iv) The Company agrees that it shall promptly upon demand
pay to any Notice Holder that sells Registrable Securities pursuant to
Section 2(b)(iii) hereof an amount in cash equal to the difference
between (x) the last sales price of the Common Stock on the Exchange
immediately preceding the date and time at which the relevant purchase
and sale agreement is executed multiplied by the number of shares of
Common Stock sold and (y) the aggregate price at which such Registrable
Securities are sold pursuant to Section 2(b)(iii) hereof; provided
that, with respect to any sale, the Company shall not be liable to any
Holder pursuant to this sentence for in excess of 10% of the amount
determined pursuant to clause (x) of this sentence.
SECTION 3. Shelf Registration. (a) The Company shall prepare and file
with the SEC, as soon as practicable but in any event by the date (the "Filing
Deadline Date") 90 days after the date hereof, a registration statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC, registering the resale from
time to time by Holders thereof of all of the Registrable Securities (the
"Initial Shelf Registration Statement"). The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance with the methods of distribution elected by the Holders and set forth
in the Initial Shelf Registration Statement. The Company shall use its
commercially reasonable efforts to cause the Initial Shelf Registration
Statement to become effective under the Securities Act as promptly as is
practicable but in any event by the date (the "Effectiveness Deadline Date") 180
days after the date hereof, and to keep the Initial Shelf Registration Statement
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement
becomes effective, each Holder that became a Notice Holder on or prior to the
date fifteen Business Days prior to such time of effectiveness shall be named as
a selling securityholder in the Initial Shelf Registration Statement and the
related
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Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of Registrable Securities in accordance with applicable law;
provided, however, that the Company shall not be obligated to include such
Notice Holder as a selling securityholder if the Company shall have reasonably
requested additional information from such Notice Holder and the Notice Holder
shall have failed to provide such information at least ten days prior to such
time of effectiveness.
(b) a Shelf Registration Statement ceases to be effective for any
reason at any time during the Effectiveness Period, the Company shall use its
commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
commercially reasonable efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and to keep the Subsequent Registration Statement continuously effective until
the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if reasonably requested by the holders of a majority of shares
constituting Registrable Securities unless it is determined, in writing, by
Xxxxxx Xxxxxx & Xxxxxxx not to be required by the Securities Act.
(d) Each Holder wishing to sell Registrable Securities pursuant to
a Shelf Registration Statement and related Prospectus agrees to deliver a duly
completed Notice and Questionnaire to the Company at least ten Business days
prior to the initial intended distribution of Registrable Securities by such
Holder under the Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement becomes effective, the Company shall, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within ten Business Days after receipt of a
completed Notice and Questionnaire:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the
Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance
with applicable law; provided, however, that the Company shall not be
obligated to include such Notice Holder as a selling securityholder if
the Company shall have reasonably requested additional information from
such Notice Holder and the Notice Holder shall have failed to provide
such information at least ten days prior to such time of effectiveness;
and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use its best efforts to cause such
post-effective amendment to become effective under the Securities Act
as promptly as is practicable, but in any event by the date (the
"Amendment Effectiveness Deadline Date") 45 days after the date such
post-effective amendment is required by this clause to be filed;
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(ii) provide such Holder a copy of any documents filed
pursuant to Section 3(d)(i) hereof; and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 3(d)(i) hereof; provided that if
such Notice and Questionnaire is delivered during a Deferral Period,
the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii)
and (iii) above, to the extent necessary, upon expiration of the
Deferral Period in accordance with Section 4(i). The Company shall be
under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related
Prospectus.
SECTION 4. Registration Procedures. In connection with the registration
obligations of the Company under Section 3 hereof, the Company shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial Purchaser
three copies of all such documents proposed to be filed.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective from the Effectiveness
Deadline Date to the expiration of the Effectiveness Period; cause the related
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and use its best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement until the
expiration of the Effectiveness Period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable, give notice to the Notice Holders
and the Initial Purchaser (i) when any Prospectus, prospectus supplement,
Registration Statement or post-effective amendment to a Registration Statement
has been filed with the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request, following the effectiveness of the Initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of any Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of a Material Event and (vi) of the determination
by the Company that a post-effective amendment to a Registration Statement would
be appropriate, which notice may, at the discretion of the Company (or as
required pursuant to Section 4(i)), state that it constitutes a Deferral Notice,
in which event the provisions of Section 4(i) shall apply.
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(d) Use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction
in which they have been qualified for sale, in either case as promptly as
reasonably practicable.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as promptly as practicable incorporate in a prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial Purchaser or such Notice Holder shall, on the basis of an opinion of
nationally-recognized counsel experienced in such matters and selected by the
Company, determine to be required to be included therein by applicable law and
make any required filings of such prospectus supplement or such post-effective
amendment; provided that the Company shall not be required to take any actions
under this Section 4(e) that are not, in the reasonable opinion of counsel for
the Company, in compliance with applicable law or during a Deferral Period.
(f) As promptly as practicable furnish to each Notice Holder and
the Initial Purchaser, without charge, at least one conformed copy of any
Registration Statement and any amendment thereto, including exhibits, and all
documents incorporated or deemed to be incorporated therein by reference.
(g) Deliver to each Notice Holder in connection with any sale of
Registrable Securities pursuant to a Registration Statement, without charge, as
many copies of the Prospectus relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby consents to the use
of the Prospectus and each amendment or supplement thereto by each Notice Holder
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(h) Prior to any public offering of the Registrable Securities,
register or qualify or cooperate with the Notice Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Notice Holder reasonably requests in writing (which request shall be
included in the Notice and Questionnaire); keep each such registration or
qualification (or exemption therefrom) effective during the period that a Shelf
Registration Statement is required to be effective and do any and all other acts
or things necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities in the manner set forth in the applicable
Registration Statement and the related Prospectus.
(i) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which any Registration Statement
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development or public filing
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with the SEC that, in the discretion of the Company, makes it appropriate to
suspend the availability of the Shelf Registration Statement and the related
Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Registration
Statement and Prospectus so that such Registration Statement does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the
next sentence, use their commercially reasonable efforts to cause it to
become effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the
availability of the Shelf Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder shall not sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder's receipt of copies of
the supplemented or amended Prospectus provided for in clause (i)
above, or until it (x) is advised in writing by nationally-recognized
counsel for the Company that the Prospectus may be used, and (y) has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its commercially reasonable efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company, such suspension is no longer appropriate.
Notwithstanding the foregoing, the Company may not (i) impose in excess of two
Deferral Periods (each not to exceed 30 days) during the initial 12 month period
or (ii) at any time, impose a Deferral Period if a Deferral Period has been in
effect within the preceding seven days; provided, however, the Company may
impose a Deferral Period commencing on the day it initiates a "road show" in
connection with the sale of Common Stock and ending on the date of the
underwriting, pricing or similar agreement.
(j) Enter into such customary agreements and take all such other
customary actions in connection therewith (including those requested by the
Holders of a majority of the Shares constituting Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an underwritten offering and in
connection therewith:
(i) provide customary indemnities to underwriters in
connection with underwritten offerings and to the extent possible, make
such representations and warranties to the
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Holders and any underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference therein, if any, in each case, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders of a majority of the
Shares constituting Registrable Securities being sold, such
underwriters and their respective counsel) addressed to each selling
Holder and underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings;
(iii) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and,
if necessary, any other certified public accountant of any subsidiary
of the Company, or of any business acquired or to be acquired by the
Company for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings; and
(iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority of the Shares
constituting Registrable Securities being sold, the underwriters and
their respective counsel to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause
(i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company.
The above shall be done at each closing under such underwriting or similar
agreement as and to the extent required thereunder.
(k) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make reasonably available for
inspection by the Notice Holders of such Registrable Securities and any
broker-dealers, attorneys and accountants retained by such Notice Holders, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries that are not otherwise publicly
available, and cause the executive officers, directors and designated employees
of the Company and its subsidiaries to make reasonably available for inspection
all relevant information reasonably requested by such Notice Holders or any such
broker-dealers, attorneys or accountants that is not otherwise publicly
available in connection with such disposition, in each case as is customary for
similar "due diligence" examinations; provided that any information that is
designated by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Notice Holders
or any such broker-dealer, attorney or accountant, unless such disclosure is
made in connection with a court proceeding or is required by law, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality.
9
(l) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(m) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to a Registration Statement, which certificates shall not bear
any restrictive legends, and cause such Registrable Securities to be in such
denominations and registered in such names as such Notice Holder may request.
(n) Provide a CUSIP number for all Registrable Securities not
later than the effective date of the Initial Shelf Registration Statement and
provide the Transfer Agent and Registrar with printed certificates for the
Registrable Securities that are in a form eligible for deposit with the
Depository Trust Company.
(o) Provide such information as is required for any filings
required to be made with NASD Regulation, Inc.
SECTION 5. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, or to receive the
benefits of Section 2 or 3 hereof, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 3(d) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder shall promptly furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder pursuant to a Registration Statement shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or relating to its plan of distribution
and that such Prospectus does not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or relating to its plan of
distribution necessary to make the statements in such Prospectus, in the light
of the circumstances under which they were made, not misleading.
SECTION 6. Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Sections 2, 3 and 4 hereof whether or not any Registration Statement
becomes effective. Such fees and expenses shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with NASD Regulation,
Inc. and (y) to comply with federal and state securities or Blue Sky laws, (ii)
reasonable printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The De-
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pository Trust Company), (iii) reasonable duplication expenses relating to
copies of any Registration Statement or Prospectus delivered to any Holders
hereunder, (iv) fees and disbursements of counsel for the Company in connection
with any Shelf Registration Statement and any opinion reasonably requested of
such counsel by the Transfer Agent and Registrar, (v) reasonable fees and
disbursements of the Transfer Agent and Registrar and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company. Notwithstanding the provisions of this Section 6, each seller of
Registrable Securities shall pay all registration expenses to the extent the
Company is prohibited by applicable Blue Sky laws from paying for or on behalf
of such seller of Registrable Securities. In addition, the Company shall bear
the fees and expenses described in Section 2(b)(iv) hereof.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
and each person, if any, who controls any Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or in any amendment thereto), or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of material fact
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to any Holder furnished in writing to the Company by or on
behalf of any Holder through you expressly for use in connection therewith. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Purchaser or any person controlling any Holder in respect of which indemnity may
be sought against the Company, any Holder or such controlling person shall
promptly notify the Company and the Company shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. Each
Holder or any such controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Holder or such controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such Holder or such
controlling person and the Company and such Holder or such controlling person
shall have been advised by its counsel that representation of such indemnified
party and the Company by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been
11
proposed) due to actual or potential differing interests between them (in which
case the Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Holder or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for any Holder and controlling persons not having actual or
potential differing interests with you or among themselves, which firm shall be
designated in writing by such Holder, and that all such fees and expenses shall
be reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless such Holder, to the extent provided in the
preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) Indemnification of Company, Directors, Officers and Other
Holders. Each Holder severally agrees to indemnify and hold harmless the Company
and any person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Holder, but only with respect to
information relating to the Holder furnished in writing by or on behalf of such
Holder through you expressly for use in the Registration Statement or any
preliminary prospectus or Prospectus (or any amendment or supplement to any
thereof). If any action, suit or proceeding shall be brought against the
Company, any of its directors, any such officer, or any such controlling person
based on the Registration Statement or any preliminary prospectus or Prospectus
(or any amendment or supplement to any thereof), and in respect of which
indemnity may be sought against the Holder pursuant to this paragraph (c), the
Purchaser shall have the rights and duties given to the Company by paragraph (a)
above (except that if the Company shall have assumed the defense thereof, the
Holder shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the Holder's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Holder by paragraph (a) above. The foregoing indemnity agreement
shall be in addition to any liability which the Holder may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holder on the other hand from the offering of
the Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Holder on the other in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Holder on
the other shall be deemed to be in the same proportion as the total net proceeds
from the initial placement (before deducting expenses) of the Registrable
Securities to which such losses, claims, damages or liabilities relate bears to
the value to the Holder of re-
12
ceiving Registrable Securities that are registered under the Securities Act. The
relative fault of the Company on the one hand and the Holder on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or by the Holder on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and each Holder agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, the Holder shall
not be required to contribute any amount in excess of the amount by which the
total price of the Shares sold by it and distributed to the public exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 7(a)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(h) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and
13
effect, regardless of (i) any investigation made by or on behalf of the Holder
or any person controlling the Holder, the Company, its directors or officers, or
any person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor to
the Holder or any person controlling the Holder, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
SECTION 8. Information Requirements. The Company shall file the reports
required to be filed by it under the Exchange Act, and, if at any time before
the end of the Effectiveness Period the Company is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further reasonable action as any Holder of
Registrable Securities may reasonably request (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule 144A. Upon the
request of any Holder of Registrable Securities, the Company shall deliver to
such Holder a written statement as to whether it has complied with such filing
requirements, unless such a statement has been included in the Company's most
recent report required to be filed and filed pursuant to Section 13 or Section
15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this Section 9
shall be deemed to require the Company to register any of its securities under
the Exchange Act.
SECTION 9. Miscellaneous.
(a) No Conflicting Agreements. The Company has not entered, as of
the date hereof, nor shall it, on or after the date of this Agreement enter,
into any agreement with respect to its securities that conflicts with the rights
granted to the Holders in this Agreement. The Company represents and warrants
that the rights granted to the Holders hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the Shares then constituting Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority of the Shares then constituting
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
14
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in a Notice and
Questionnaire or any amendment thereto;
(y) if to the Company, to:
First Industrial Realty Trust, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Attention: General Counsel
Telecopy No.: (000) 000-0000
and
(z) if to the Initial Purchaser, to:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Attention: Legal Department
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 10(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchaser or subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchaser. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
15
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 5 or 7 hereof, each of which shall
remain in effect in accordance with its terms.
[Signatures begin on following page.]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President -
Capital Markets
FIRST INDUSTRIAL, L.P.
By: Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President -
Capital Markets
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
(for its benefit and for the benefit of the Holders)
By: /s/ Xxxx X. Xxxxx
----------------------
Name:
Title:
APPENDIX A
FIRST INDUSTRIAL REALTY TRUST, INC.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of shares of Common Stock, $.01 par
value per share (the "Registrable Securities"), of First Industrial Realty
Trust, Inc. (the "Company" or "Registrant") understands that the Registrant has
filed or intends to file with the Securities and Exchange Commission a
registration statement on Form S-3 (as more fully defined in the Registration
Rights Agreement referred to below, the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities, in accordance with the
terms of the Registration Rights Agreement, dated as of April 29, 1998 (the
"Registration Rights Agreement"), between the Company and the Initial Purchaser
named therein. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. Each capitalized term not
otherwise defined herein shall have the meaning ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Company as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable
but in any event within seven Business Days of such receipt, file such
amendments to the Shelf Registration Statement or supplements to the related
prospectus as are necessary to permit such holder to deliver such prospectus to
purchasers of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related prospectus.
A-1
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has
agreed to indemnify and hold harmless the Company, the Company's directors, the
Company's officers who sign the Shelf Registration Statement, each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), each other Holder of Registrable Securities and each
person, if any, who controls any Holder of Registrable Securities within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against certain losses arising in connection with statements concerning
the undersigned or its Plan of Distribution made in the Shelf Registration
Statement or related prospectus in reliance upon the information provided in
this Notice and Questionnaire.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3)
below are held:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in (3) below are held:
2. Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
3. Beneficial Ownership of Registrable Securities:
A-2
Number of shares beneficially owned:
4. Beneficial Ownership of Other Securities of the Company owned by the
Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item (3).
(a) Type and amount of other securities of the Company
beneficially owned by the Selling Securityholder:
(b) CUSIP No(s). of such other securities beneficially owned:
5. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exception here:
6. Plan of Distribution
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If the Registrable Securities
are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the
Regis-
A-3
trable Securities may be listed or quoted at the time of sale, (ii) in
the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities in the course of hedging in
positions they assume. The undersigned may also sell Registrable
Securities short and deliver Registrable Securities to close out short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the
prior agreement of the Company.
The undersigned acknowledges that it understands its obligations to
comply with the provisions of the Exchange Act and the rules thereunder relating
to stock manipulation, particularly Regulation M thereunder (or any successor
rules or regulations), in connection with any offering of Registrable Securities
pursuant to the Shelf Registration Statement. The undersigned agrees that
neither it nor any person acting on its behalf will engage in any transaction in
violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth herein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholder against
certain liabilities.
Pursuant to the Registration Rights Agreement, the Selling
Securityholder is obligated to pay (a) all registration expenses to the extent
the Company is prohibited by applicable Blue Sky laws from paying for or on
behalf of such Selling Securityholder and (b) to the extent incurred by such
Selling Stockholder, all (i) legal fees, (ii) brokerage fees and sales
commissions and (iii) out of pocket expenses.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Date:
(Beneficial Owner)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
THE COMPANY AT:
FIRST INDUSTRIAL REALTY TRUST, INC.
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
A-5
