-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LiAmhK19ZzrY3OO6JWgo3My8vN45dR+8kKqiNPalKxMgLBlZHKqaMBtc+8BzAp5+ jpOkQlmGYUZCuv7OWtw+oQ== 0000950134-98-009915.txt : 19981228 0000950134-98-009915.hdr.sgml : 19981228 ACCESSION NUMBER: 0000950134-98-009915 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19981223 EFFECTIVENESS DATE: 19981223 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN INDUSTRIAL PROPERTIES REIT INC CENTRAL INDEX KEY: 0000778437 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 756335572 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-69625 FILM NUMBER: 98774956 BUSINESS ADDRESS: STREET 1: 6210 N BELTLINE RD STREET 2: STE 170 CITY: IRVING STATE: TX ZIP: 75063 BUSINESS PHONE: 9727566000 MAIL ADDRESS: STREET 1: 6220 N BELTLINE ROAD STREET 2: SUITE 205 CITY: IRVING STATE: TX ZIP: 75063 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN INDUSTRIAL PROPERTIES REIT DATE OF NAME CHANGE: 19931203 FORMER COMPANY: FORMER CONFORMED NAME: TRAMMELL CROW REAL ESTATE INVESTORS DATE OF NAME CHANGE: 19931203 S-8 1 FORM S-8 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)
EX-4 2 TRUST'S DEFERRED COMPENSATION PLAN 1 EXHIBIT 4 DEFERRED COMPENSATION PLAN FOR NON-EMPLOYEE TRUST MANAGERS American Industrial Properties REIT (the "Trust") desires to establish a Deferred Compensation Plan (the "Plan") for Non-Employee Trust Managers (the "Eligible Trust Manager") to assist it in attracting and retaining persons of competence and stature to serve as outside Trust Managers by enabling them to defer receipt of the fees payable to them by the Trust for their services as Trust Managers. Therefore, the Trust hereby adopts the Plan as hereinafter set forth: 1. Effective Date. The Plan shall apply to all elections to defer compensation made after its adoption and shall apply to all Eligible Trust Managers' fees payable with respect to periods commencing with the Trust's fiscal quarter which begins October 1, 1998. 2. Participation. Each Eligible Trust Manager of the Trust (a) who is duly elected or appointed to the Trust's Board of Trust Managers and (b) who receives fees for services as a Trust Manager, may elect to defer receipt of fees otherwise payable to him or her, as provided for in the Plan. Each such Eligible Trust Manager who elects to defer fees shall be referred to as a "Participant" in the Plan. 3. Administration. The Board of Trust Managers appoints Marc A. Simpson and Charles W. Wolcott, each of whom is not eligible to become a Participant, to act as the Administrator of the Plan (the "Administrators"). The Administrators shall serve at the pleasure of the Board of Trust Managers and shall administer, construe and interpret the Plan. The Administrators shall not be liable for any omission or act omitted or done, or determination made in good faith. The Board of Trust Managers shall have the power to designate additional or replacement Administrators at its discretion. 4. Deferrals. (a) Deferral Election. Any Eligible Trust Manager may file with the Administrators of the Plan, prior to January 1 of each year (except for the first year of the existence of the Plan, for which filing must be made by the 5th day after the actual adoption of the Plan) an election in writing to participate in the Plan for that year or for that year and succeeding years. Each Eligible Trust Manager who first becomes eligible to participate after the date of the adoption of this Plan may make an election for the portion of the year in which he or she first became eligible with respect to any unearned fees for services yet to be rendered after the date of such election. When a deferral election is filed, no fees will be paid for services so designated for that year (or portion thereof) or, if the election so provides, for that year and for succeeding years. If an election has been filed to participate in the Plan for succeeding years and a Participant wishes to discontinue deferral, an election to terminate participation in the Plan for any year must be filed prior to January 1 of the year in which such termination is to take effect. (b) Accounting. The Trust shall maintain appropriate records which shall list and reflect each entry debited or credited to each Participant's Plan account ("Deferral Accounts"). The Trust shall credit to each Participant's Deferral Account an amount equivalent 1 2 EXHIBIT 4 to a number of hypothetical Common Shares of the Trust ("Common Shares") as if the fees that would have been paid to him or her, if he or she had not elected to participate in the Plan, were used to purchase the Common Shares. The valuation of such Common Shares shall be determined as provided in this Section 4(c) below. The credit shall be made on the date on which the fee would have been paid absent a deferral election. No monetary funds or actual Common Shares shall be segregated into the Deferral Account of Participants and such Deferral Accounts shall represent only a general unsecured obligation of the Trust to make distributions in the future as provided in the Plan. (c) Valuation. Until such time that the first distribution is made to a Participant, the amounts credited to a Deferral Account of such Participant shall be increased or decreased as measured by the market value of the Common Shares. Each amount credited to a Deferral Account shall be assigned a number of "Share Units" (including fractions of a Common Share) determined by dividing the amount credited to the Deferral Account, whether in lieu of payment of fees for service as a Trust Manager or as a dividend or other distribution attributable to such Share Units, by the fair market value of a share of the Trust's Common Shares on the date of credit. Fair market value shall be the mean between the high and low selling price of a share of the Trust's Common Shares on the New York Stock Exchange on the applicable date or, if no sales occurred on such date, on the most recent earlier date on which sales occurred. Each Share Unit shall have the value of a Common Share of the Trust. The number of Share Units shall be adjusted to reflect share splits, share dividends or other capital adjustments effected without receipt of consideration by the Trust. 5. Distribution. (a) Election. A Participant shall elect in writing, at the time he or she makes each deferral election under subparagraph 4(a), the year in which distribution of the credits to his or her Deferral Account to which the deferral election relates shall commence ("Distribution Commencement Date"), and whether distribution will be made in a lump sum or in installments, as permitted in the second succeeding sentence of this Section 5(a). (b) Limitation. In no event shall a Participant be allowed to elect a Distribution Commencement Date that may commence any earlier than the January 1 following the year in which the Participant attains age 55, and any later than the January 1 following the year in which the Participant attains age 72. (c) Cash Value. On the Distribution Commencement Date the number of Share Units shall be converted to a cash amount equal to the fair market value of the total of the number of Share Units reflected in a Participant's Deferral Account on such date. Beginning on the Distribution Commencement Date, the relevant Deferral Account shall not be credited with any additional Share Units. (d) Interest. Beginning with the Distribution Commencement Date and immediately prior to the first distribution to a 2 3 EXHIBIT 4 Participant and continuing thereafter, amounts credited to the Deferral Account of such Participant shall be credited with interest, computed quarterly, calculated at a rate per annum for each fiscal quarter of the Trust equal to the prime rate of interest published in The Wall Street Journal on the first business day of that quarter. Payment may be made in one lump sum, or in five or ten equal annual installments of the Deferral Account balance allocated to such installment payments determined as of the December 31 immediately preceding commencement of distribution, with each payment accompanied by an interest credited during the period preceding payment of the installment. (e) Timing and Form of Distribution. The time of and method of distribution of benefits may vary with each separate election, but each election shall be irrevocable. The Deferral Accounts shall not represent rights to acquire the Trust's Common Shares. All distributions under the Plan shall only be made in cash. 6. Death or Disability. (a) If a Participant's service is terminated by reason of death or disability prior to the distribution of any portion of his or her benefits, the Distribution Commencement Date as to such Participant shall be a date that falls within 90 days of the date of service termination, as determined by the Plan Administrators. Any distribution under the Plan in such event shall be made to the Participant (or to the beneficiary or beneficiaries in the event of death). Distribution shall be made in accordance with the method of distribution elected by the Participant pursuant to paragraph 3 hereof. If a Participant's death or disability occurs after distribution of benefits hereunder has begun, the Trust shall continue to make distributions to the Participant (or to the beneficiary or beneficiaries in the event of death) in accordance with the methods of distribution elected by the Participant pursuant to paragraph 5 hereof. (b) Each Participant may designate one or more beneficiaries to receive distributions in the event of Participant's death by filing with the Trust a beneficiary designation on a form provided. The designated beneficiary or beneficiaries may be changed by a Participant at any time prior to his or her death by the delivery to the Trust of a new beneficiary designation form. If no beneficiary shall have been designated, or if no designated beneficiary shall survive the Participant, distributions pursuant to this provision shall be made to the Participant's estate. 7. Assignment and Alienation of Benefits. To the extent permitted by law, the right of any Participant to any account, benefit or payment hereunder shall not be subject in any manner to attachment or other legal process for the debts of such Participant, and no account, benefit or payment shall be subject to anticipation, alienation, sale, transfer, assignment or encumbrance. 8. Amendment or Termination. The Board of Trust Managers of the Trust may terminate this Plan at any time or amend it at any time and from time to time. No amendment or termination of this Plan shall affect the rights of a Participant accrued prior thereto. 3 4 EXHIBIT 4 9. Taxes. The Trust shall not be responsible for the tax consequences under federal, state or local law of any election made by any Participant under the Plan. All payments under the Plan shall be subject to withholding and reporting requirements to the extent permitted by applicable law. 10. Applicable Law. This Plan shall be interpreted under the laws of the State of Texas. 11. Taxability. The Plan is designed to allow the Participants to defer recognition of compensation as taxable income until Distribution Commencement Date. Accordingly, the provisions of the Plan shall be construed in keeping with this goal. IN WITNESS WHEREOF, the Trust has caused this Plan to be adopted, and executed by its President, this 21st day of December, 1998. AMERICAN INDUSTRIAL PROPERTIES REIT /s/ Charles W. Wolcott ---------------------------------------- Charles W. Wolcott, President 4 5 EXHIBIT 4 ELECTION OF DEFERRAL To: Administrators Deferred Compensation Plan for Non-Employee Trust Managers American Industrial Properties REIT 6210 N. Beltline Road Suite 170 Irving, Texas 75063 I, _______________________________, a Trust Manager of American Industrial Properties REIT, hereby elect to participate in the Deferred Compensation Plan for Non-Employee Trust Managers for the fiscal year ending December 31, 199__ and all succeeding years. I elect to have distributions made commencing on January 1, ______, and payments should be made in _____ one lump sum, ____ five equal annual installments or ___ ten equal annual installments (Mark an "X" next to the choice). I designate the following as my beneficiary: _______________________________________. ---------------------------------------- (Signature) 5 EX-5 3 OPINION OF LIDDELL, SAPP, ZIVLEY, HILL & LABOON 1 EXHIBIT 5 OPINION OF LIDDELL, SAPP, ZIVLEY, HILL & LABOON [Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. Letterhead] December 21, 1998 American Industrial Properties REIT 6210 N. Beltline, Suite 170 Irving, Texas 75063 Ladies and Gentlemen: We have acted as counsel to American Industrial Properties REIT, a Texas real estate investment trust (the "Trust"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by the Trust with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, relating to the issuance of general, unsecured deferred compensation obligations ("Obligations") pursuant to the Trust's Deferred Compensation Plan for Non-Employee Trust Managers (the "Plan"). In connection with this opinion, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable in connection with this opinion, including the Trust's Declaration of Trust, the Trust's Bylaws and the Plan. In our examination we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, the authenticity of originals of such copies and the authenticity of telegraphic or telephonic confirmations of public officials and others. As to facts material to our opinion, we have relied upon certificates or telegraphic or telephonic confirmations of public officials and certificates, documents, statements and other information of the Trust or its representatives or officers. Based upon the foregoing, we are of the opinion that the Obligations will be binding, general, unsecured obligations of the Trust. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. Very truly yours, /s/ Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. LIDDELL, SAPP, ZIVLEY, HILL & LaBOON, L.L.P. EX-23.2 4 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Deferred Compensation Obligations of American Industrial Properties REIT (the "Company") of our reports: (i) dated March 6, 1998 with respect to the Consolidated Financial Statements of the Company as of December 31, 1997 and 1996 and for the three years in the period ended December 31, 1997 included in the Company's Annual Report on Form 10-K for the year ended December 31, 1997; (ii) dated March 4, 1998 with respect to the Combined Historical Summary of Gross Income and Direct Operating Expenses of Skyway and Central Park Industrial Properties for the year ended December 31, 1996 included in the Company's Current Report on Form 8-K dated March 23, 1998; (iii) dated January 15, 1998 with respect to the Historical Summary of Gross Income and Direct Operating Expenses of Inverness Industrial Property for the year ended December 31, 1996 included in the Company's Current Report on Form 8-K dated March 23, 1998; (iv) dated February 28, 1998 with respect to the Historical Summary of Gross Income and Direct Operating Expenses of Avion Industrial Property for the year ended December 31, 1996 included in the Company's Current Report on Form 8-K dated March 23, 1998; (v) dated February 13, 1998 with respect to the Historical Summary of Gross Income and Direct Operating Expenses of Spring Valley #6 Industrial Property for the years ended December 31, 1997 and 1996 included in Amendment No. 2 to the Company's Current Report on Form 8-K dated February 11, 1998; (vi) dated April 7, 1998, except for Note 5 as to which the date is May 6, 1998, with respect to the Combined Historical Summary of Gross Income and Direct Operating Expenses of the Spieker Properties Portfolio for the year ended December 31, 1997 included in the Company's Current Report on Form 8-K dated April 30, 1998; and (vii) dated May 15, 1998 with respect to the Historical Summary of Gross Income and Direct Operating Expenses of North Austin Office Building for the year ended December 31, 1997, included in the Company's Current Report on Form 8-K dated April 30, 1998, all filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP ERNST & YOUNG LLP Dallas, Texas December 21, 1998 EX-23.3 5 CONSENT OF EASLEY, ENDRES, PARKHILL & BRACKENDORFF 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) of American Industrial Properties REIT (the "Company") for the registration of Deferred Compensation Obligations to our report dated August 5, 1997 with respect to the Historical Summary of Gross Income and Direct Operating Expenses of Commerce Center for the year ended May 31, 1997 included in Amendment No. 1 to the Company's Current Report on Form 8-K dated November 13, 1997 filed with the Securities and Exchange Commission. /s/ Easley, Endres, Parkhill & Brackendorff, P.C. EASLEY, ENDRES, PARKHILL & BRACKENDORFF, P.C. Houston, Texas December 21, 1998 EX-23.4 6 CONSENT OF KPMG PEAT MARWICK, LLP 1 EXHIBIT 23.4 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) relating to the Deferred Compensation Plan for Non-Employee Trust Managers of American Industrial Properties REIT (the "Company") of our reports (i) dated February 12, 1998 with respect to the Financial Statements of USAA Real Estate Income Investments I Limited Partnership as of December 31, 1997 and 1996 and for the three years in the period ended December 31, 1997; (ii) dated July 25, 1997, except for Note 10 as to which the date is August 20, 1997, with respect to the Financial Statements of USAA Real Estate Income Investments II Limited Partnership as of June 30, 1997 and 1996 and for the three years in the period ended June 30, 1997; (iii) dated February 9, 1998 with respect to the Financial Statements of USAA Income Properties III Limited Partnership as of December 31, 1997 and 1996 and for the three years in the period ended December 31, 1997; and (iv) dated February 9, 1998 with respect to the Financial Statements of USAA Income Properties IV Limited Partnership as of December 31, 1997 and 1996 and for the three years in the period ended December 31, 1997 which reports appear in Amendment No. 1, filed March 23, 1998, to the Company's Current Report on Form 8-K dated January 20, 1998 filed with the Securities and Exchange Commission. /s/ KPMG Peat Marwick LLP KPMG Peat Marwick LLP San Antonio, Texas December 21, 1998 EX-23.5 7 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.5 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement of American Industrial Properties REIT on Form S-8 of our report dated January 26, 1998, appearing in the Current Report on Form 8-K dated March 23, 1998, with respect to the Combined Statement of Revenues and Certain Expenses of Corporex Plaza I and Presidents' Plaza Business Center for the year ended December 31, 1996. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP Cincinnati, Ohio December 21, 1998 EX-23.6 8 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.6 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of American Industrial Properties REIT of our reports dated August 31, 1998 relating to the Combined Statement of Revenue and Certain Expenses of the Norfolk Commerce Park Properties and the Combined Statement of Revenue and Certain Expenses of the Developers Diversified Realty Corporation Properties which appear in the Current Report on Form 8-K and the Current Report on Form 8-K/A, respectively, of American Industrial Properties REIT dated July 30, 1998. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Cleveland, Ohio December 21, 1998 -----END PRIVACY-ENHANCED MESSAGE-----