-----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, OZaUhhXke17OQbrb/mn3jO1Tg0iS4KPvOmvXybk2WRJVfKUpysmGXBosDtcLGPw/ mcpPvsDVgaPNJ/skLCBpmw== 0000726728-02-000018.txt : 20021220 0000726728-02-000018.hdr.sgml : 20021220 20021220163259 ACCESSION NUMBER: 0000726728-02-000018 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021220 EFFECTIVENESS DATE: 20021220 FILER: COMPANY DATA: COMPANY CONFORMED NAME: REALTY INCOME CORP CENTRAL INDEX KEY: 0000726728 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330580106 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-102080 FILM NUMBER: 02865304 BUSINESS ADDRESS: STREET 1: 220 W CREST ST CITY: ESCONDIDO STATE: CA ZIP: 92025-1707 BUSINESS PHONE: 7607412111 MAIL ADDRESS: STREET 1: 220 WEST CREST ST CITY: ESCONDIDO STATE: CA ZIP: 92025-1707 S-8 1 form-s8.txt FORM S-8 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on December 20, 2002 Registration No. 333- ------- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------------------- REALTY INCOME CORPORATION (Exact name of registrant as specified in its charter) --------------------------------------- Maryland 33-0580106 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 220 West Crest Street Escondido, California 92025-1707 (Address of Principal Executive Offices including Zip Code) --------------------------------------- THE 1994 STOCK OPTION AND INCENTIVE PLAN FOR KEY EMPLOYEES OF REALTY INCOME CORPORATION AND R.I.C. ADVISOR, INC. (Full Title of Plan) - -------------------------------------------------------------------------------- Michael R. Pfeiffer, Esq. Copy to: Executive Vice President, General Counsel and Secretary William J. Cernius c/o REALTY INCOME CORPORATION LATHAM & WATKINS 220 West Crest Street 650 Town Center Drive, Suite 2000 Escondido, California 92025-1707 Costa Mesa, California 92626 (760) 741-2111 (714) 540-1235 (Name, address, including zip code, and telephone number, including area code, of agent for service) - --------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------------- Title of Each Class Amount Proposed Maximum Proposed Maximum Amount of of Securities to to be Offering Price Aggregate Offering Registration be Registered Registered (1) (3) Per Share (2) Price Fee - ---------------------------------------------------------------------------------------------------------------------- Common Stock (1)(3) 1,000,000 $35.40 $35,400,000 $3,257 - ---------------------------------------------------------------------------------------------------------------------- (1) The 1994 Stock Option and Incentive Plan for Key Employees of Realty Income Corporation and R.I.C. Advisor, Inc. (the "Plan") authorizes the issuance each year of a maximum of three percent (3%) of the total outstanding shares of common stock of Realty Income Corporation (the "Company") at the end of each calendar year, of which 500,000 shares have been previously registered and 1,000,000 shares are being registered hereby. (2) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h) and (c) under the Securities Act of 1933, as amended (the "Securities Act"), and is based on the average ($35.40) of the high and low sales price of the Registrant's common stock, as reported on the New York Stock Exchange on December 19, 2002. (3) Each share of common stock being registered hereunder, if issued prior to the termination by the Company of the Plan, will include one Common Share Purchase Right. Prior to the occurrence of certain events, the Common Share Purchase Rights will not be exercisable or evidenced separately from the common stock. ======================================================================================================================
Proposed sale to take place as soon after the effective date of the Registration Statement as outstanding options are exercised. 1 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information called for in Part I of the Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission"). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT REGISTRATION OF ADDITIONAL SECURITIES This Registration Statement covers 1,000,000 additional shares of our Common Stock reserved for issuance under the 1994 Stock Option and Incentive Plan (the "Plan"). Effective September 9, 1993, our board of directors adopted, and on September 22, 1993, our original stockholder approved the Plan, which set the number of shares reserved for issuance each year thereunder at three percent (3%) of the total of outstanding shares at the end of each calendar year. On August 11, 1995, the Company filed with the Commission Form S-8 Registration Statement No. 33-95708 (the "Original Registration Statement") covering an aggregate of 500,000 shares issuable under the Plan. The contents of the Original Registration Statement are incorporated by reference herein to the extent not modified or superseded thereby or by any subsequently filed document, which is incorporated by reference herein or therein. The consolidated financial statements and financial statement schedule of Realty Income Corporation and subsidiaries as of December 31, 2001 and 2000, and for each of the years in the three-year period ended December 31, 2001, have been incorporated by reference herein in reliance upon the reports of KPMG LLP, independent accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. ITEM 8. EXHIBITS See Index to Exhibits on page 5. 2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that we meet all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on our behalf by the undersigned, thereunto duly authorized, in the City of Escondido, State of California, on this the 20th day of December, 2002. REALTY INCOME CORPORATION a Maryland corporation By: /s/ Michael R. Pfeiffer --------------------------------------------- Michael R. Pfeiffer Executive Vice President, General Counsel and Secretary POWER OF ATTORNEY Each person whose signature appears below hereby authorizes and appoints Michael R. Pfeiffer, as attorney-in-fact and agent, with full powers of substitution, to sign on his behalf, individually and in the capacities stated below, and to file any and all amendments, including post-effective amendments, to this registration statement and other documents in connection therewith, with the Commission, granting to said attorney-in-fact and agent full power and authority to perform any other act on behalf of the undersigned required to be done in the premises. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on December 20, 2002.
Signature Title /s/ Thomas A. Lewis Vice Chairman of the Board and Chief Executive Officer - -------------------------------------------- Thomas A. Lewis /s/ Paul M. Meurer Executive Vice President, Chief Financial Officer and Treasurer - -------------------------------------------- Paul M. Meurer (Principal Financial Officer) /s/ Gregory J. Fahey Vice President, Controller (Principal Accounting Officer) - -------------------------------------------- Gregory J. Fahey /s/ William E. Clark Chairman of the Board - -------------------------------------------- William E. Clark /s/ Donald R. Cameron Director - -------------------------------------------- Donald R. Cameron /s/ Roger P. Kuppinger Director - -------------------------------------------- Roger P. Kuppinger 3 /s/ Michael D. McKee Director - -------------------------------------------- Michael D. McKee /s/ Willard H. Smith Jr. Director - -------------------------------------------- Willard H. Smith Jr. /s/ Kathleen R. Allen, Ph.D. Director - -------------------------------------------- Kathleen R. Allen, Ph.D.
4 INDEX TO EXHIBITS
EXHIBIT PAGE 4.1 The 1994 Stock Option and Incentive Plan for Key Employees of Realty -- Income Corporation and RIC Advisor, Inc., dated June 15, 1994, filed as an exhibit with the Original Registration Statement on Form S-8, dated August 11, 1995, and incorporated herein by reference. 4.2 Rights Agreement, dated as of June 25, 1998, between Realty Income -- Corporation and The Bank of New York (filed as an exhibit to our registration statement on Form 8-A, dated June 26, 1998, and incorporated herein by reference). 5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP. 6 23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in Exhibit 6 5.1). 23.2 Consent of Independent Auditors 7 24 Power of Attorney (included in the signature page to this Registration 3 Statement).
5 EX-5.1 2 exhibit5-1s8.txt LETTER FROM BALLARD SPAHR ANDREWS & INGERSOLL LAW OFFICES Ballard Spahr Andrews & Ingersoll, LLP 300 East Lombard Street DENVER, CO Baltimore, MD 21202 PHILADELPHIA, PA 410-528-5600 SALT LAKE CITY, UT FAX: 410-528-5650 VOORHEES, NJ LAWYERS@BALLARDSPAHR.COM WASHINGTON, DC Exhibit 5.1 FILE NUMBER 875770 December 20, 2002 Realty Income Corporation 220 West Crest Street Escondido, California 92025 Re: Registration Statement on Form S-8 -------------------------------------------- Ladies and Gentlemen: We have served as special Maryland counsel to Realty Income Corporation, a Maryland corporation (the "Company"), in connection with certain matters of Maryland law arising out of the registration of 1,000,000 shares (the "Shares") of common stock, $1.00 par value per share, of the Company (the "Common Stock") issuable in connection with The 1994 Stock Option and Incentive Plan for Key Employees of Realty Income Corporation and RIC Advisor, Inc. (the "Plan"), covered by the Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "1933 Act"). In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the "Documents"): 1. The Registration Statement; 2. The charter of the Company (the "Charter"), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the "SDAT"); 3. The Bylaws of the Company (the "Bylaws"), certified as of the date hereof by an officer of the Company; 4. The Plan; 5. Resolutions adopted by the Board of Directors of Realty Income Corporation, a Delaware corporation ("Realty Income Delaware"), relating to the adoption of the Plan (the "1993 Directors' Resolutions"), certified as of the date hereof by an officer of the Company; Realty Income Corporation December 20, 2002 Page Two 6. A resolution adopted by the sole stockholder of Realty Income Delaware relating to the adoption of the Plan (the "1993 Stockholder Resolution"), certified as of the date hereof by an officer of the Company; 7. Resolutions adopted by the Board of Directors of Realty Income of Maryland, Inc., a Maryland corporation ("Realty Income Maryland"), relating to the adoption of the Plan (the "1997 Directors' Resolutions"), certified as of the date hereof by an officer of the Company; 8. Resolutions adopted by the sole stockholder of Realty Income Maryland relating to the adoption of the Plan (the "1997 Stockholder Resolutions"), certified as of the date hereof by an officer of the Company; 9. Resolutions adopted by the Board of Directors of the Company relating to the registration of the Shares (the "1999 Resolutions" and together with the 1993 Directors' Resolutions, the 1993 Stockholder Resolution, the 1997 Directors' Resolutions and the 1997 Stockholder Resolutions, the "Resolutions"), certified as of the date hereof by an officer of the Company; 10. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date; 11. A certificate executed by an officer of the Company, dated as of the date hereof; and 12. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth in this letter, subject to the assumptions, limitations and qualifications stated herein. In expressing the opinion set forth below, we have assumed the following: 1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so. 2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so. 3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms. Realty Income Corporation December 20, 2002 Page 3 4. All Documents submitted to us as originals are authentic. The form and content of the Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information contained in the Documents are true and complete. There has been no oral or written modification or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise. 5. The Shares will not be issued or transferred in violation of any restriction or limitation contained in the Charter or the Plan. Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that: 1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT. 2. The Shares have been duly authorized for issuance and, when and if issued and delivered against payment therefor and otherwise in the manner described in the Registration Statement, the Resolutions and the Plan, will be (assuming that, upon any such issuance, the sum of (i) all shares of Common Stock issued as of the date hereof, (ii) any shares of Common Stock issued between the date hereof and any date on which the Shares are actually issued (not including the Shares) and (iii) the Shares will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter) validly issued, fully paid and nonassessable. The foregoing opinion is limited to the substantive laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is being furnished to you solely for your submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon by, quoted in any manner to, or delivered to any other person or entity without, in each instance, our prior written consent. Realty Income Corporation December 20, 2002 Page 4 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act. Very truly yours, EX-23.2 3 exhibit23-2s8.txt INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.2 Independent Auditors' Consent The Board of Directors Realty Income Corporation: We consent to the use of our report incorporated by reference herein and to the reference to our firm under the heading "Experts" in the registration statement. San Diego, California December 18, 2002 -----END PRIVACY-ENHANCED MESSAGE-----