UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-B12B
FOR REGISTRATION OF SECURITIES
OF CERTAIN SUCCESSOR ISSUERS
FILED PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Realty Income Corporation
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(Exact name of registrant as specified in its charter)
Maryland 33-05080106
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(State of incorporation (I.R.S. Employer
or organization) Identification Number)
220 West Crest Street
Escondido, California 92025-1707
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(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ----------------------------- ------------------------------
Common Stock, $1.00 Par Value New York Stock Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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ITEM 1. GENERAL INFORMATION.
=============================
(a) The registrant, Realty Income Corporation (the
"Registrant" or "Company") was incorporated in Maryland on March
25, 1997 under the name Realty Income of Maryland, Inc.
(b) The Registrant's fiscal year end is December 31 of each
year.
ITEM 2. TRANSACTION OF SUCCESSION.
===================================
(a) The predecessor to the Registrant, Realty Income
Corporation, a Delaware corporation ("Realty Income Delaware")
had securities registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
at the time of the succession to the Registrant.
(b) Realty Income Delaware changed its state of
incorporation from Delaware to Maryland through a merger (the
"Merger") of Realty Income Delaware with and into its wholly-
owned subsidiary, Realty Income of Maryland, Inc. ("Realty Income
Maryland"). The Merger was effective as of 8:30 a.m. (EST) on
May 28, 1997 (the "Effective Time") and was conducted pursuant to
the Agreement and Plan of Merger dated as of May 15, 1997, by and
between Realty Income Delaware and Realty Income Maryland.
Realty Income Maryland was the surviving entity immediately after
the Merger, at which time it changed its name to Realty Income
Corporation. At the Effective Time, by virtue of the Merger and
without any action on the part of Realty Income Delaware or
Realty Income Maryland or any holder of any stock of either of
them, the following occurred:
1. Each share of common stock, par value $1.00 per
share, of Realty Income Delaware ("Delaware Shares") issued and
outstanding immediately prior to the Effective Time was converted
into one validly issued, fully paid and nonassessable share of
common stock, par value $1.00 per share, of the Registrant
("Maryland Shares" or "Common Stock"). Each certificate
representing Delaware Shares represents the right to receive
Maryland Shares. All Delaware Shares have ceased to be
outstanding, have been canceled and retired and no longer exist.
2. Each Delaware Share issued and held in Realty
Income Delaware's treasury at the Effective Time, by virtue of
the Merger and without any action on the part of the holder
thereof, has ceased to be outstanding, has been cancelled and
retired without payment of any consideration therefore and is no
longer outstanding.
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3. Each Maryland Share issued and outstanding
immediately prior to the Effective Time, by virtue of the Merger
and without any action on the part of Realty Income Maryland or
the holder of such shares, has been cancelled and retired without
payment of any consideration therefor.
4. Each option or other right to purchase or otherwise
acquire Delaware Shares pursuant to stock option or other stock-
based plans of Realty Income Delaware granted and outstanding
immediately prior to the Effective Time, by virtue of the Merger
and without any action on the part of the holder of such option
or right, has been converted into and has become a right to
purchase or otherwise acquire the same number of Maryland Shares
at the same price per share and upon the same terms and subject
to the same conditions as applicable to such options or other
rights immediately prior to the Effective Time.
From and after the Effective Time, each issued and
outstanding Delaware Share and all rights in respect thereof
shall be converted into one fully paid and nonassessable Maryland
Share, and each certificate nominally representing Delaware
Shares shall for all purposes be deemed to evidence the ownership
of an equal number of Maryland Shares. The holders of
certificates shall not be required immediately to surrender the
same in exchange for certificates of Maryland Shares, but, as
certificates nominally representing Delaware Shares are
surrendered for transfer, Registrant will cause to be issued
certificates representing Maryland Shares, and, at any time upon
surrender by any holder of certificates nominally representing
Delaware Shares, Registrant will cause to be issued therefor
certificates for an equal number of Maryland Shares.
ITEM 3. SECURITIES TO BE REGISTERED.
=====================================
The authorized capital stock of the Registrant consists of
100,000,000 shares of Common Stock, $1.00 par value per share,
and 20,000,000 shares of Preferred Stock, $1.00 par value per
share. As of June 27, 1997, 22,988,186 shares of Common Stock
were outstanding (of which none were held by or for the
Registrant), and no shares of Preferred Stock were outstanding.
ITEM 4. DESCRIPTION OF SECURITIES TO BE REGISTERED.
====================================================
Subject to the preferential rights of any other shares or
series of stock, holders of Common Stock are entitled to receive
dividends when, as and if declared by the Registrant's Board of
Directors out of funds legally available therefor. Payment and
declaration of dividends on the Common Stock and purchases of
shares thereof by the Registrant may be subject to certain
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restrictions if the Registrant fails to pay dividends on any
Preferred Stock. Upon any liquidation, dissolution or winding up
of the Registrant, holders of Common Stock are entitled to share
equally and ratably in any assets available for distribution to
them, after payment or provision for payment of the debts and
other liabilities of the Registrant and the preferential amounts
owing with respect to any outstanding Preferred Stock. The
Common Stock possesses ordinary voting rights for the election of
directors and in respect of other corporate matters, each share
entitling the holder thereof to one vote. Holders of Common
Stock do not have cumulative voting rights in the election of
directors, which means that holders of more than 50% of all the
shares of the Registrant's Common Stock voting for the election
of directors can elect all the directors if they choose to do so
and the holders of the remaining shares cannot elect any
directors. Holders of shares of Common Stock do not have
preemptive rights, which means they have no right to acquire any
additional shares of Common Stock that may be issued by the
Registrant at a subsequent date. All shares of Common Stock now
outstanding are fully paid and nonassessable, and no shares of
Common Stock are or will be subject to preemptive or similar
rights. The foregoing description of the Common Stock is subject
to and qualified in its entirety by reference to the applicable
provisions of the Registrant's Articles of Incorporation and
Bylaws.
ITEM 5. FINANCIAL STATEMENTS AND EXHIBITS.
===========================================
(a) Financial Statements. Because the capital structure
and balance sheet of the Registrant immediately after the Merger
were substantially the same as those of Realty Income Delaware,
no financial statements are included herein.
(b) Exhibits. The following documents are filed as
exhibits hereto:
EXHIBITS
REQUIRED BY
FORM 8-B DESCRIPTION
- -----------------------------------------------------------------
A Notice of Annual Meeting of Stockholders of
Realty Income Corporation and Proxy Statement
dated March 28, 1997 ("Proxy Statement") (filed
with the Commission on March 28, 1997 and
incorporated herein by reference)
B Agreement and Plan of Merger dated as of
May 15, 1997 between Realty Income Corporation, a
Delaware corporation, and Realty Income of
Maryland, Inc., a Maryland corporation.
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EXHIBITS
REQUIRED BY
FORM 10 DESCRIPTION
- -----------------------------------------------------------------
2.1 Agreement and Plan of Merger between Realty
Income Corporation and R.I.C. Advisor, Inc. dated
as of April 28, 1995 (filed as Appendix A to the
Company's Proxy Statement and incorporated herein
by reference)
3.1 Articles of Incorporation of Realty Income
Corporation (filed as Appendix B to the Company's
Proxy Statement and incorporated herein by
reference)
3.2 Bylaws of Realty Income Corporation (filed as
Appendix C to the Company's Proxy Statement and
incorporated herein by reference)
4.1 Form of Indenture dated as of May 6, 1997 between
the Company and The Bank of New York (filed as
Exhibit 4.1 to the Company's Form 8-K dated
May 5, 1997 and incorporated herein by reference)
4.2 Pricing Committee Resolutions and Form of 7 3/4%
Note due 2007 (filed as Exhibit 4.2 to the
Company's 8-K dated May 5, 1997 and incorporated
herein by reference)
4.3 First Supplemental Indenture dated as of
May 28, 1997 between the Company and The Bank of
New York
4.4 Specimen Stock Certificate for Registrant's
Common Stock
10.1 Revolving Credit Agreement (filed as Exhibit 99.2
to the Company's Form 8-K dated December 16, 1994
and incorporated herein by reference)
10.2 First Amendment to the Revolving Credit Agreement
(filed as Exhibit 10.2 to the Company's Form 10-Q
for the quarter ended September 30, 1996 and
incorporated herein by reference)
10.3 Second Amendment to the Revolving Credit
Agreement (filed as Exhibit 99.2 to the Company's
Form 8-K dated December 19, 1995 and incorporated
herein by reference)
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10.4 Third Amendment to the Revolving Credit Agreement
(filed as Exhibit 10.4 to the Company's Form 10-K
for the year ended December 31, 1996 and
incorporated herein by reference)
10.5 Fourth Amendment to the Revolving Credit
Agreement (filed as Exhibit 10.5 to the Company's
Form 10-Q for the quarter ended March 31, 1997
and incorporated herein by reference)
10.6 Stock Incentive Plan (filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-8
(Registration number 33-95708) and incorporated
herein by reference)
10.7 Form of Indemnification Agreement to be entered
into between the Company and the executive
officers of the Company (filed as Exhibit 10.4 to
the Company's Form 10-Q for the quarter ended
September 30, 1996 and incorporated herein by
reference)
10.8 Form of Management Incentive Plan (filed as
Exhibit 10.5 to the Company's Form 10-Q for the
quarter ended September 30, 1996 and incorporated
herein by reference)
10.9 First Amendment to the Stock Incentive Plan,
dated as of June 12, 1997
10.10 Form of Employment Agreement between the Company
and its Executive Officers
12.1 Statement regarding Computation of Ratio of
Earnings to Fixed Charges (filed as Exhibit 12.1
to the Company's Form 8-K dated May 5, 1997 and
incorporated herein by reference)
21.1 Subsidiaries of Registrant as of June 15, 1997
(filed as Exhibit 21.1 to the Company's Form 10-K
for the year ended December 31, 1996 and
incorporated herein by reference)
27 Financial Data Schedule (filed as Exhibit 27 to
the Company's Form 10-Q for the quarter ended
March 31, 1997 and incorporated herein by
reference)
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99.1 Press release announcing that Thomas A. Lewis has
been selected to succeed William E. Clark as
Chief Executive Officer of the Company (filed as
Exhibit 99.1 to the Company's Form 10-Q for the
quarter ended March 31, 1997 and incorporated
herein by reference)
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SIGNATURES
Pursuant to the requirements of Section 12 of the Exchange Act,
the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized.
Date: July 29, 1997 REALTY INCOME CORPORATION
By: /S/ RICHARD J. VANDERHOFF
-------------------------------------
Richard J. VanDerhoff
President and Chief Operating Officer
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EXHIBIT NO. DESCRIPTION
- -----------------------------------------------------------------
A Notice of Annual Meeting of Stockholders of
Realty Income Corporation and Proxy Statement
dated March 28, 1997 ("Proxy Statement") (filed
with the Commission on March 28, 1997 and
incorporated herein by reference)
B Agreement and Plan of Merger dated as of
May 15, 1997 between Realty Income Corporation, a
Delaware corporation, and Realty Income of
Maryland, Inc., a Maryland corporation.
2.1 Agreement and Plan of Merger between Realty
Income Corporation and R.I.C. Advisor, Inc. dated
as of April 28, 1995 (filed as Appendix A to the
Company's Proxy Statement and incorporated herein
by reference)
3.1 Articles of Incorporation of Realty Income
Corporation (filed as Appendix B to the Company's
Proxy Statement and incorporated herein by
reference)
3.2 Bylaws of Realty Income Corporation (filed as
Appendix C to the Company's Proxy Statement and
incorporated herein by reference)
4.1 Form of Indenture dated as of May 6, 1997 between
the Company and The Bank of New York (filed as
Exhibit 4.1 to the Company's Form 8-K dated
May 5, 1997 and incorporated herein by reference)
4.2 Pricing Committee Resolutions and Form of 7 3/4%
Note due 2007 (filed as Exhibit 4.2 to the
Company's 8-K dated May 5, 1997 and incorporated
herein by reference)
4.3 First Supplemental Indenture dated as of
May 28, 1997 between the Company and The Bank of
New York
4.4 Specimen Stock Certificate for Registrant's
Common Stock
10.1 Revolving Credit Agreement (filed as Exhibit 99.2
to the Company's Form 8-K dated December 16, 1994
and incorporated herein by reference)
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10.2 First Amendment to the Revolving Credit Agreement
(filed as Exhibit 10.2 to the Company's Form 10-Q
for the quarter ended September 30, 1996 and
incorporated herein by reference)
10.3 Second Amendment to the Revolving Credit
Agreement (filed as Exhibit 99.2 to the Company's
Form 8-K dated December 19, 1995 and incorporated
herein by reference)
10.4 Third Amendment to the Revolving Credit Agreement
(filed as Exhibit 10.4 to the Company's Form 10-K
for the year ended December 31, 1996 and
incorporated herein by reference)
10.5 Fourth Amendment to the Revolving Credit
Agreement (filed as Exhibit 10.5 to the Company's
Form 10-Q for the quarter ended March 31, 1997
and incorporated herein by reference)
10.6 Stock Incentive Plan (filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-8
(Registration number 33-95708) and incorporated
herein by reference)
10.7 Form of Indemnification Agreement to be entered
into between the Company and the executive
officers of the Company (filed as Exhibit 10.4 to
the Company's Form 10-Q for the quarter ended
September 30, 1996 and incorporated herein by
reference)
10.8 Form of Management Incentive Plan (filed as
Exhibit 10.5 to the Company's Form 10-Q for the
quarter ended September 30, 1996 and incorporated
herein by reference)
10.9 First Amendment to the Stock Incentive Plan,
dated as of June 12, 1997
10.10 Form of Employment Agreement between the Company
and its Executive Officers
12.1 Statement regarding Computation of Ratio of
Earnings to Fixed Charges (filed as Exhibit 12.1
to the Company's Form 8-K dated May 5, 1997 and
incorporated herein by reference)
21.1 Subsidiaries of Registrant as of June 15, 1997
(filed as Exhibit 21.1 to the Company's Form 10-K
for the year ended December 31, 1996 and
incorporated herein by reference)
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27 Financial Data Schedule (filed as Exhibit 27 to
the Company's Form 10-Q for the quarter ended
March 31, 1997 and incorporated herein by
reference)
99.1 Press release announcing that Thomas A. Lewis has
been selected to succeed William E. Clark as
Chief Executive Officer of the Company (filed as
Exhibit 99.1 to the Company's Form 10-Q for the
quarter ended March 31, 1997 and incorporated
herein by reference)
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EXHIBIT B
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of
May 15, 1997, is between Realty Income Corporation, a Delaware
corporation (the "Company"), and Realty Income of Maryland, Inc.,
a Maryland corporation (the "Maryland Company").
RECITALS
========
WHEREAS, the Board of Directors of the Company and the Board of
Directors of the Maryland Company each have determined that it is
in the best interests of their respective stockholders to effect
the merger provided for herein (the "Merger") upon the terms and
subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained
herein the parties hereto adopt the plan of merger encompassed by
this agreement and agree as follows:
ARTICLE I
THE MERGER; CLOSING; EFFECTIVE TIME
1.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.3), the
Company shall be merged with and into the Maryland Company and
the separate corporate existence of the Company shall thereupon
cease (the "Merger"). To the extent the Merger constitutes a
transaction for federal income tax purposes, the parties intend
that the Merger qualify as a reorganization described in Section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended.
The Maryland Company shall be the surviving entity in the Merger
(sometimes hereinafter referred to as the "Surviving Entity") and
shall continue to be governed by the laws of the State of
Maryland and the separate existence of the Maryland Company with
all its rights, privileges, immunities, powers and franchises
shall continue unaffected by the Merger.
The Merger shall have the effects specified in the Delaware
General Corporation Law (the "DGCL") and the Maryland General
Corporation Law (the "MGCL").
1.2 CLOSING. The closing of the Merger (the "Closing") shall
take place (i) at the offices of Latham & Watkins, 650 Town
Center Drive, Suite 2000, Costa Mesa, California 92626 at 10:00
a.m local time on the first business day on which the last to be
fulfilled or waived of the conditions set forth in Section 6.1
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hereof shall be fulfilled or (ii) at such other place and time
and/or on such other date as the Company and the Maryland Company
may agree.
1.3 EFFECTIVE TIME. Following the Closing, and provided that
this Agreement has not been terminated or abandoned pursuant to
Article VII hereof, the Company and the Maryland Company will, at
such time as they deem advisable, cause a Certificate of
Ownership and Merger (the "Certificate of Merger") to be
executed, acknowledged and filed with the Secretary of State of
Delaware as provided in Section 253 of the DGCL and Articles of
Merger (the "Articles of Merger") to be filed with the State
Department of Assessments and Taxation of Maryland (the "SDAT")
as provided in Section 3-105 of the MGCL. The Merger shall
become effective at the latter of the filing of the Certificate
of Merger with the Secretary of State of Delaware and the
acceptance for record of the Articles of Merger by the SDAT (the
"Effective Time").
ARTICLE II
ARTICLES OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of
the Maryland Company in effect at the Effective Time shall be the
Articles of Incorporation of the Surviving Entity, until duly
amended in accordance with the terms thereof, and the MGCL.
2.2 THE BYLAWS. The Bylaws of the Maryland Company in effect at
the Effective Time shall be the Bylaws of the Surviving Entity,
until duly amended in accordance with the terms thereof and the
MGCL.
ARTICLE III
DIRECTORS AND OFFICERS
OF THE SURVIVING CORPORATION
3.1 DIRECTORS AND OFFICERS. The directors and officers of the
Company at the Effective Time shall, from and after the Effective
Time, be the directors and officers, respectively, of the
Surviving Entity until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation
or removal in accordance with the Surviving Entity's Articles of
Incorporation and Bylaws.
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ARTICLE IV
EFFECT OF THE MERGER ON CAPITAL STOCK;
EXCHANGE OF CERTIFICATES
4.1 EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue
of the Merger and without any action on the part of the holder of
any capital stock of the Company;
(a) Each share of the common stock, par value $1.00 per
share (the "Company Shares") of the Company issued and
outstanding immediately prior to the Effective Time shall be
converted into one validly issued, fully paid and nonassessable
share of common stock, par value $1.00 per share (the "Maryland
Company Shares") of the Maryland Company. Each certificate
(each, a "Certificate") representing any such Company Shares
shall thereafter represent the right to receive Maryland Company
Shares. At the Effective Time, all Company Shares shall no
longer be outstanding and shall be cancelled and retired and
shall cease to exist.
(b) Each Company Share issued and held in the Company's
treasury at the Effective Time, shall by virtue of the Merger and
without any action on the part of the holder thereof, cease to be
outstanding, shall be cancelled and retired without payment of
any consideration therefor and shall cease to exist.
(c) At the Effective Time, each Maryland Company Share
issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part
of the Maryland Company or the holder of such shares, be
cancelled and retired without payment of any consideration
therefor.
(d) Each option or other right to purchase or otherwise
acquire Company Shares pursuant to stock option or other stock-
based plans of the Company granted and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder of such option or
right, be converted into and become a right to purchase or
otherwise acquire the same number of Maryland Company Shares at
the same price per share and upon the same terms and subject to
the same conditions as applicable to such options or other rights
immediately prior to the Effective Time.
4.2 CONVERSION OF OUTSTANDING STOCK OF THE COMPANY. From and
after the Effective Time, each issued and outstanding Company
Share and all rights in respect thereof shall be converted into
one fully paid and nonassessable Maryland Company Share, and each
Certificate nominally representing Company Shares shall for all
purposes be deemed to evidence the ownership of an equal number
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of Maryland Company Shares. The holders of Certificates shall
not be required immediately to surrender the same in exchange for
certificates of Maryland Company Shares, but, as Certificates
nominally representing Company Shares are surrendered for
transfer, the Maryland Company will cause to be issued
certificates representing Maryland Company Shares, and, at any
time upon surrender by any holder of Certificates nominally
representing Company Shares, the Maryland Company will cause to
be issued therefor certificates for an equal number of Maryland
Company Shares.
ARTICLE V
COVENANTS
5.1 STOCK EXCHANGE LISTING. The Maryland Company shall use its
best efforts to cause the Maryland Company Shares to be issued in
the Merger to be approved for listing on the New York Stock
Exchange, Inc. ("NYSE"), subject to official notice of issuance,
prior to the Closing Date.
5.2 INDEMNIFICATION; DIRECTORS' AND OFFICERS' INSURANCE. From
and after the Effective Time, the Surviving Entity agrees that it
will indemnify, and pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to, (i) any
individual who is a present or former director or officer of the
Company or (ii) any individual who, while a director of the
Company and at the request of the Company, serves or has served
another corporation, partnership, joint venture, trust, employee
benefit plan or any other enterprise as a director, officer,
partner or trustee of such corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise,
arising out of or pertaining to matters existing or occurring at
or prior to the Effective Time, whether asserted or claimed prior
to, at or after the Effective Time, to the fullest extent
permitted by law.
ARTICLE VI
CONDITIONS
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of the Maryland Company and the
Company to consummate the Merger are subject to the fulfillment
of each of the following conditions:
(a) Stockholder Approval. This Agreement shall have been
duly approved by the holders of a majority of the Company Shares,
in accordance with applicable law and the Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws of
the Company.
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(b) NYSE Listing. The Maryland Company Shares issuable to
the Company stockholders pursuant to this Agreement shall have
been authorized for listing on the NYSE upon official notice of
issuance.
ARTICLE VII
TERMINATION
7.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated and the Merger may be abandoned at any time prior to
the Effective Time, before or after the approval by holders of
the Company Shares, by the mutual consent of the Board of
Directors of the Company and the Board of Directors of the
Maryland Company.
7.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and abandonment of the Merger
pursuant to this Article VII, no party hereto (or any of its
directors or officers) shall have any liability or further
obligation to any other party to this Agreement.
ARTICLE VIII
MISCELLANEOUS AND GENERAL
8.1 MODIFICATION OR AMENDMENT. Subject to the applicable
provisions of the DGCL and the MGCL, at any time prior to the
Effective Time, the parties hereto may modify or amend this
Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties.
8.2 WAIVER OF CONDITIONS. The conditions to each of the
parties' obligations to consummate the Merger are for the sole
benefit of such party and may be waived by such party in whole or
in part to the extent permitted by applicable law.
8.3 COUNTERPARTS. For the convenience of the parties hereto,
this Agreement may be executed in any number of counterparts,
each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same
agreement.
8.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the States of Delaware
and Maryland.
8.5 NO THIRD PARTY BENEFICIARIES. Except as provided in Section
5.2, this Agreement is not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
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8.6 HEADINGS. The Article, Section and paragraph headings
herein are for convenience of reference only, do not constitute a
part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
8.7 SERVICE OF PROCESS. The Maryland Company may be served with
process in the State of Maryland in any proceeding for the
enforcement of any obligation of the Company, as well as for
enforcement of any obligations of the Maryland Company arising
from the Merger, and it does hereby irrevocably appoint the
Secretary of State of the State of Maryland as its agent to
accept service of process in any such suit or other proceedings.
The address to which a copy of such process shall be mailed by
the Secretary of State to the Maryland Company is 220 West Crest
Street, Escondido, California 92025-1707, Attn: Legal Department.
8.8 CHANGE OF NAME. The Maryland Company will change its name
to Realty Income Corporation.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto
on the date first hereinabove written.
REALTY INCOME CORPORATION
Attest: /S/ MICHAEL R. PFEIFFER By: /S/ RICHARD J. VANDERHOFF
----------------------- -------------------------
Michael R. Pfeiffer Richard J. VanDerhoff
Vice President, General President and Chief
Counsel and Secretary Operating Officer
REALTY INCOME OF MARYLAND, INC.
Attest: /S/ MICHAEL R. PFEIFFER By: /S/ RICHARD J. VANDERHOFF
----------------------- -------------------------
Michael R. Pfeiffer Richard J. VanDerhoff
Vice President, General President and Chief
Counsel and Secretary Operating Officer
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EXHIBIT 4.3
REALTY INCOME CORPORATION
to
THE BANK OF NEW YORK
TRUSTEE
______________________________________
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 28, 1997
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THIS FIRST SUPPLEMENTAL INDENTURE, is entered into as of
May 28, 1997, by and between Realty Income Corporation, a
Maryland corporation (the "Maryland Company"), and The Bank of
New York, a banking corporation organized under the laws of the
State of New York, as trustee (the "Trustee").
WHEREAS, Realty Income Corporation, a Delaware corporation
(the "Delaware Company"), and the Trustee entered into the
Indenture dated as of May 6, 1997 (the "Indenture"), relating to
the Delaware Company's debt securities, including without
limitation, its 7 3/4% Notes due 2007 (the "Securities");
WHEREAS, the merger (the "Merger") of the Delaware Company
with and into its wholly owned subsidiary, the Maryland Company,
has occurred as of the date hereof pursuant to the Agreement and
Plan of Merger dated May 15, 1997 and the Maryland Company has
assumed all of the obligations of the Delaware Company (for
purposes of Section 801 of the Indenture);
WHEREAS, the Maryland Company has made a request to the
Trustee that the Trustee join with it, in accordance with Section
901 of the Indenture, in the execution of the First Supplemental
Indenture to permit the Maryland Company to assume all the
obligations of the Delaware Company under the Indenture pursuant
to Section 801 of the Indenture;
WHEREAS, the Maryland Company and the Trustee are authorized
to enter into this First Supplemental Indenture; and
WHEREAS, simultaneously with the Merger, the Maryland
Company changed its name from Realty Income Corporation of
Maryland, Inc. to Realty Income Corporation;
NOW, THEREFORE, the Maryland Company and the Trustee agree
as follows:
Section (a) Capitalized terms used herein and not otherwise
defined herein are used as defined in the Indenture.
Section (b) The Maryland Company as the surviving
corporation of the Merger expressly acknowledges and assumes the
due and punctual payment of the principal of, premium, if any,
and interest on the Securities and the performance and observance
of every covenant of the Indenture to be performed or observed by
the Delaware Company.
Section (c) On the date hereof, the Maryland Company (as the
surviving corporation of the Merger) shall, by virtue of the
assumption described in Section 2 above and the execution and
delivery of this First Supplemental Indenture, succeed to and be
substituted for the Delaware Company.
Page 19
<PAGE>
Section (d) The Maryland Company (as the surviving
corporation of the Merger) hereby assumes all the agreements and
obligations of the Delaware Company under the Securities and the
Indenture and agrees to become the successor to the Delaware
Company with respect to all such agreements and obligations in
accordance with the terms of such instruments.
Section (e) This First Supplemental Indenture supplements
the Indenture and shall be a part and subject to all the terms
thereof. Except as supplemented hereby, the Indenture and the
Securities issued thereunder shall continue in full force and
effect.
Section (f) This First Supplemental Indenture may be
executed in counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and the
same instrument.
Section (g) THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF).
Section (h) The Trustee shall not be responsible for any
recital herein (other than the fourth recital as it appears as it
applies to the Trustee) as such recitals shall be taken as
statements of the Maryland Company, or the validity of the
execution by the Maryland Company of this First Supplemental
Indenture. The Trustee makes no representations as to the
validity or sufficiency of this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed all as of the
day and year first above written.
REALTY INCOME CORPORATION, a Maryland corporation
By: /S/ WILLIAM E. CLARK
----------------------------------------------
William E. Clark
Chairman of the Board, Chief Executive Officer
THE BANK OF NEW YORK, as Trustee
By: /S/ VIVIAN GEORGES
----------------------------------------------
Name: Vivian Georges
Title: Assistant Vice President
Page 20
EXHIBIT 4.4
(FRONT OF DOCUMENT; HORIZONTAL)
COMMON STOCK
REALTY (LOGO) INCOME
NUMBER SHARES
RI
Realty Income Corporation
INCORPORATED UNDER THE LAWS
OF THE STATE OF MARYLAND
CUSIP 756109 10 4
SEE REVERSE FOR CERTAIN DEFINITIONS
This Certifies that
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF THE COMMON STOCK, $1.00
PAR VALUE, OF
CERTIFICATE OF STOCK
Realty Income Corporation transferable on the books of the
Corporation by the holder hereof in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed.
This Certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
Witness the seal of the Corporation and the signatures of
its duly authorized officers.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
Dated:
________________________ Chairman
________________________ Secretary (SEAL)
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK
TRANSFER AGENT AND REGISTRAR
BY ______________________ Authorized Signature
Page 21
<PAGE>
(BACK OF DOCUMENT; VERTICAL)
The Corporation will furnish to any stockholder, on request
and without charge, a full statement of the information required
by Section 2-211(b) of the Corporations and Associations Article
of the Annotated Code of Maryland with respect to the
designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and
other distributions, qualifications, and terms and conditions of
redemption of the stock of each class which the Corporation has
authority to issue and, (if the Corporation is authorized to
issue any preferred or special class in series,) (i) the
differences in the relative rights and preferences between the
shares of each series to the extent set, and (ii) the authority
of the Board of Directors to set such rights and preferences of
subsequent series. The foregoing summary does not purport to be
complete and is subject to and qualified in its entirety by
reference to the charter of the Corporation (the "Charter"), a
copy of which will be sent without charge to each stockholder who
so requests. Requests for such written statement may be directed
to Michael R. Pfeiffer, the Secretary of the Company, at the
Company's principal office.
The shares represented by this certificate are subject to
restrictions on Beneficial and Constructive Ownership and
Transfer for the purpose of the Corporation's maintenance of its
status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended (the "Code"). Subject to
certain further restrictions and except as expressly provided in
the Corporation's Charter, (i) no Person may Beneficially Own in
excess of 9.8% of the outstanding Common Shares of the
Corporation (by value or by number of shares, whichever is more
restrictive); (ii) no Person may Constructively Own in excess of
9.8% of the outstanding Common Shares of the Corporation (by
value or by number of shares, whichever is more restrictive);
(iii) no Person may Beneficially or Constructively Own Common
Shares that would result in the Corporation being "closely held"
under Section 856(h) of the Code or otherwise cause the
Corporation to fail to qualify as a REIT; and (iv) no Person may
Transfer Common Shares if such Transfer would result in the
capital stock of the Corporation being owned by fewer than 100
Persons. Any Person who Beneficially or Constructively Owns or
attempts to Beneficially of Constructively Own Common Shares
which causes or will cause a Person to Beneficially or
Constructively Own Common Shares in excess of the above
limitations must immediately notify the Corporation. If any of
the restrictions on transfer or ownership are violated, the
Common Shares represented hereby will be automatically
transferred to a Trustee of a Trust for the benefit of one or
more Charitable Beneficiaries. In addition, the Corporation may
redeem shares upon the terms and conditions specified by the
Page 22
<PAGE>
Continued
(BACK OF DOCUMENT; VERTICAL)
Board of Directors in its sole discretion if the Board of
Directors determines that ownership or a Transfer or other event
may violate the restrictions described above. Furthermore, upon
the occurrence of certain events, attempted Transfers in
violation of the restrictions described above may be void AB
INITIO. All capitalized terms in this legend have the meanings
defined in the Charter of the Corporation, as the same may be
amended from time to time, a copy of which, including the
restrictions on transfer and ownership, will be furnished to each
holder of Common Shares on request and without charge. Requests
for such a copy may be directed to Michael R. Pfeiffer, the
Secretary of the Company, at the Company's principal office.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _____________
(Cust) (Minor)
under Uniform Gifts to Minors
Acts _____________________________
(State)
UNIF TRF MIN ACT - ________ Custodian (until age ___)
(Cust)
__________ under Uniform Transfers
(Minor)
to Minors Act ____________________
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, _______ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
Page 23
<PAGE>
Continued
(BACK OF DOCUMENT; VERTICAL)
_________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE)
_________________________________________________________________
_________________________________________________________________
___________________________________________________________Shares
of the common stock represented by the within Certificate, and do
hereby irrevocable constitute and appoint
_________________________________________________________Attorney
to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated ____________________________
X __________________________________________
X __________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By _______________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
Page 24
EXHIBIT 10.9
FIRST AMENDMENT TO THE
1994 STOCK OPTION AND INCENTIVE PLAN
FOR KEY EMPLOYEES OF
REALTY INCOME CORPORATION,
AND RIC ADVISOR, INC.
------------------------------------
THIS FIRST AMENDMENT ("Amendment") TO 1994 STOCK OPTION
AND INCENTIVE PLAN FOR KEY EMPLOYEES OF REALTY INCOME CORPORATION
and RIC ADVISOR, INC. (the "Plan") is made as of June __, 1997,
by Realty Income Corporation, a Delaware corporation (the
"Company").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Board of Directors of the Company has
determined that it is appropriate and in the best interests of
the Company to amend the Plan as set forth herein;
NOW, THEREFORE, in consideration of the foregoing
recital, the Plan is hereby amended as set forth herein:
(i) Capitalized terms used herein which are not
otherwise defined herein but are defined in the Plan shall have
the meanings given to such terms in the Plan.
(j) Section 3.5 of the Plan is hereby amended and
restated in its entirety as follows:
"3.5 Grant of Non-Qualified Stock Options to
Independent Directors
In addition to the Options granted by the
Committee pursuant to Section 3.4 above, Non-Qualified Stock
Options shall be granted to Independent Directors pursuant to the
following formula:
(a) Each person who is an Independent Director on
June __, 1997 or becomes an Independent Director thereafter shall
automatically receive, on June __, 1997 if such director is an
existing Independent Director or otherwise on the date such
Independent Director is first elected or appointed, an option to
purchase 5,000 shares of Common Stock, at an exercise price equal
to the fair market value of the shares on the date of grant.
Page 25
<PAGE>
(b) Every year during the term of the Plan
following June __, 1997 or the date on which such Independent
Director is elected or appointed, as the case may be, on the date
of the annual meeting of the shareholders of the Company, each
Independent Director, if such person has continuously served as
an Independent Director, shall automatically receive an option to
purchase 5,000 shares of Common Stock, at an exercise price equal
to the fair market value of the shares on the date of grant.
(c) Options granted pursuant to subsections (a)
and (b) above will vest upon the Optionee's continued service as
an Independent Director at a rate of 5,000 shares per year
measured from the date of grant.
(d) Options granted pursuant to subsections (a)
and (b) above will expire on the earlier of ten years from the
date of grant or one year after an Independent Director's
termination of service as an Independent Director."
(k) Except as expressly provided in this Amendment,
all of the terms, covenants, conditions, restrictions and other
provisions contained in the Plan shall remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned, being duly
authorized to do so, has caused this Amendment to be executed as
of the date first above written.
REALTY INCOME CORPORATION
By:
-----------------------
Name: Michael R. Pfeiffer
Title: Vice President, General
Counsel and Secretary
Page 26
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT, dated as of ___________, 1996, by and
between Realty Income Corporation, a Delaware corporation (the
"Company"), and __________________, an individual residing in the
county of San Diego, state of California (the "Employee").
1. Term. The Company hereby employs the Employee for an
indefinite term commencing on the date hereof and continuing
until this Agreement is terminated by either party as provided
hereinafter in Paragraph 10 (such period being hereinafter
sometimes referred to as the "term of this Agreement"). The
Employee accepts such employment and agrees to perform the
services specified herein, all upon the terms and conditions
hereinafter set forth.
2. Duties. The Employee shall perform such management and
administrative duties as are from time-to-time assigned to him by
the Company. If the Employee is elected an officer of the
Company during the term of this Agreement, the Employee will
serve in such capacity without further compensation. The
Employee also agrees to perform, without additional compensation,
such other services for the Company and for any subsidiary or
affiliated corporations of the Company or for any partnerships in
which the Company has an interest, as the Board of Directors of
the Company shall from time-to-time specify.
3. Extent of Services. During the term of this Agreement,
the Employee shall devote his full time, attention and energy to
the business of the Company and, except as may be specifically
permitted by the Board of Directors in writing, shall not be
engaged in any other business activity which would interfere with
the performance of his duties hereunder or be competitive with
the business of the Company. The foregoing restrictions shall
not be construed as preventing the Employee from making passive
investments in other businesses or enterprises; provided,
however, that such other investments will not require services on
the part of the Employee which would in any manner impair the
performance of his duties under this Agreement, and provided
further that such other businesses or enterprises are not engaged
in any business competitive to the business of the Company.
4. Salary. During the term of this Agreement, as
compensation for the proper and satisfactory performance of all
duties to be performed by Employee hereunder, the Company shall
Page 27
<PAGE>
pay to the Employee base salary of no less than
_____________________________ ($________________) per year less
required deductions for state and federal withholding tax, social
security and all other required employee taxes and payroll
deductions. From time-to-time during the term of this Agreement,
the amount of the Employee's base salary may be increased by and
at the sole discretion of the Company. The base salary shall be
payable in installments in accordance with regular payroll
policies of the Company in effect from time-to-time during the
term of this Agreement.
5. Annual Incentive Plan. The Employee shall participate
in the Management Incentive Plan of the Company as the same shall
be adopted and amended from time to time by the Compensation
Committee of the Board of Directors.
6. Medical Insurance; Benefit Plans. During the term of
this Agreement, the Employee shall be entitled to participate, on
the same terms as are applied to all other employees, in any
group medical insurance plan, qualified pension or profit sharing
plan or any other employee benefit plan from time-to-time
maintained by the Company.
7. Expenses. During the term of this Agreement, the
Company shall pay to or reimburse the Employee, upon submission
of an appropriate statement by him documenting such expenses as
required by the Internal Revenue Code, for all out-of-pocket
expenses for entertainment, travel, meals, hotel accommodations
and the like reasonably incurred by him in the course of his
employment hereunder.
8. Vacation. The Employee shall be entitled to an annual
vacation in accordance with the Company's Employee Handbook, as
the same may be amended from time to time. Such vacation shall
be scheduled at such time as the Employee may choose, but shall
be timed in such manner as to avoid interference with the
necessary performance of his duties hereunder. Unused vacation
time shall accrue from year-to-year subject to the limitations on
carryover of vacation set forth in the Company's Employee
Handbook, as the same may be amended from time to time.
9. Sick/Personal Leave. The Employee shall be entitled to
sick/personal leave in accordance with the Company's Employee
Handbook, as the same may be amended from time to time.
10. Termination.
a. Death or Permanent Disability. In the event that
the Employee dies or is physically or mentally unable to perform
substantially all of his duties hereunder, then this Agreement
shall terminate upon the Employee's death or disability, and
Page 28
<PAGE>
(with the exception of any life or disability insurance benefits
to which the Employee may be entitled) the Company shall have no
further obligation hereunder to the Employee or his spouse or
estate except to pay to the Employee (in the event of his
disability) or the Employee's spouse if she should survive him,
or to the Employee's estate if his spouse shall not survive him,
the amount of the Employee's base salary, and vacation, if any,
accrued to the date of his death or disability.
b. Termination by the Company. This Agreement may be
terminated by the Company without cause at any time upon written
notice to the Employee, provided that the Company shall (i) pay
to the Employee an amount equal to __________ (___) months' base
salary under this Agreement (payable in __________ (___) biweekly
installments), (ii) pay any accrued vacation pay to which the
Employee may be entitled hereunder prorated through the date of
termination, (iii) continue to provide Employee with group
medical insurance at the Company's expense for a period of
___________ (___) months from the date of termination or until
Employee becomes covered under another group medical insurance
plan, whichever occurs first. In the event this Agreement is
terminated by the Company pursuant to this Paragraph 10(b), such
termination shall be upon the terms of, and the Company and the
Employee shall execute, the Severance Agreement and General
Release in the form of Exhibit A, attached hereto and
incorporated herein by reference. In the event this Agreement is
terminated by the Company as a result of a Change in Control, the
number of months of base salary payable to the Employee and the
number of months of insurance coverage to be provided for the
Employee shall each be increased by fifty percent. For the
purpose of this Paragraph 10(b), "Change in Control" shall mean
the acquisition of shares of the Company's Common Stock by any
person, entity or group in a transaction or series of
transactions, resulting in the beneficial ownership of more than
thirty percent of the outstanding Common Stock of the Company; a
merger consolidation or sale of substantially all the assets of
the Company; a contested election of directors of the Company
resulting in a majority of the nominees recommended by the Board
of Directors of the Company not being elected; a change in
composition within a sixty-day period of a majority of the
Company's Board of Directors; or any other event which results in
a change of voting power sufficient to elect a majority of the
Board of Directors of the Company.
c. Termination by the Employee. This Agreement may be
terminated by the Employee without cause at any time upon two (2)
weeks' written notice to the Company.
d. Limitations on Severance Compensation. The
foregoing notwithstanding, (i) the total amount of payments to be
made pursuant to Paragraphs 10(a), 10(b), or 10(c), above, shall
Page 29
<PAGE>
not exceed the equivalent of twice the Employee's annual
compensation during the year immediately preceding the
termination of his service; and (ii) all payments to be made to
the Employee pursuant to Paragraphs 10(a), 10(b), or 10(c),
above, shall be completed within twenty-four (24) months after
the termination of the Employee's service.
e. Failure to Perform. Notwithstanding any other
provision of this Agreement, if the Employee shall be discharged
by the Company for cause, then this Agreement shall automatically
terminate (except for the provisions of Paragraphs 12 and 13,
which shall continue in effect), and upon such termination, the
Company shall have no further obligation to the Employee or his
spouse or estate, except that the Company shall pay to the
Employee, the amount of his base salary and vacation pay accrued
to the date of such termination. For the purpose of this
Agreement, a discharge for cause shall mean a discharge resulting
from a determination by the Company that the Employee (i) has
been convicted of a crime involving fraud, theft or embezzlement
or of any other crime involving morale turpitude, (ii) has
persistently failed or refused to follow written policies or
directives established by the Company, (iii) has persistently
failed to attend to his duties, (iv) has committed acts amounting
to gross negligence or willful misconduct to the detriment of the
Company, or (v) has breached any material term or provision of
this Agreement.
11. Corporate Opportunity. The Employee acknowledges the
value to the Company of his knowledge, contacts and working
relationships involving the business of the Company. Employee
agrees to utilize all of such capacities for the sole use and
benefit of the Company and to first offer to the Company any and
all of those opportunities which shall come to his knowledge
which are within the area of business of the Company.
12. Confidential Information. The Employee acknowledges
that in the course of his employment with the Company, he will
receive certain trade secrets, know-how, lists of customers,
employee records and other confidential information and knowledge
concerning the business of the Company (hereinafter collectively
referred to as "information") which the Company desires to
protect. The Employee understands that such information is
confidential, and he agrees not to reveal such information to
anyone outside the Company. The Employee further agrees that
during the term of this Agreement and thereafter he will not use
such information in competing with the Company. At such time as
the Employee shall cease to be employed by the Company, he shall
surrender to the Company all papers, documents, writings and
other property produced by him or coming into his possession by
or through his employment hereunder and relating to the
information referred to in this section, and the Employee agrees
Page 30
<PAGE>
that all such materials will at all times remain the property of
the Company.
13. Assignment of Proprietary Information. During the term
of this Agreement, all patents, processes and other proprietary
information developed by the Employee in the course of his
employment shall be the sole and exclusive property of the
Company. The Employee covenants and agrees to execute any
documents or take any action necessary to effectively transfer
any rights he may have in such proprietary information to the
Company and to maintain the rights, interest and title of the
Company in and to such information. Nothing herein shall be
deemed to deny Employee the protection afforded by California
Labor Code Section 2870.
14. Indemnification. The Company shall indemnify Employee
against liability pursuant to an Indemnity Agreement, to be
executed concurrent herewith.
15. Notices. All notices, requests, consents and other
communications under this Agreement shall be in writing and shall
be deemed to have been delivered on the date personally delivered
or on the date mailed, postage prepaid, by certified mail, return
receipt requested, or telegraphed and confirmed if addressed to
the respective parties as follows:
If to the Employee: ____________________________________
____________________________________
____________________________________
If to the Company: Realty Income Corporation
Attention: Chief Executive Officer
220 West Crest Street
Escondido, California 92025-1707
Either party hereto may designate a different address by
providing written notice of such new address to the other party
hereto as provided in this Paragraph 15.
16. Specific Performance. The Employee acknowledges that a
remedy at law for any breach or attempted breach of Paragraphs 12
and 13 of this Agreement will be inadequate, and therefore agrees
that the Company shall be entitled to specific performance and
injunctive and other equitable relief in case of any such breach
or attempted breach, and further agrees to waive any requirement
for the securing or posting of any bond in connection with the
obtaining of any such injunctive or any other equitable relief.
17. Severability. In the event any term, phrase, clause,
Paragraph, section, restriction, covenant or agreement contained
in this Agreement shall be held to be invalid or unenforceable,
Page 31
<PAGE>
the same shall be deemed, and it is hereby agreed that the same
are meant to be several and shall not defeat or impair the
remaining provisions hereof.
18. Waiver. The waiver by the Company of any breach of any
provision of this Agreement by the Employee shall not operate or
be construed as a waiver of any subsequent or continuing breach
of this Agreement by the Employee.
19. Assignment. This Agreement may not be assigned by the
Employee. Neither of the Employee nor his spouse or estate shall
have any right to commute, encumber or dispose of any right to
receive payments under this Agreement, it being agreed that such
payments and the rights thereto are nonassignable and
nontransferable.
20. Binding Effect. Subject to the provisions of Paragraph
19, this Agreement shall be binding upon and inure to the benefit
of the parties hereto, the Employee's heirs and personal
representatives, and the successors and assigns of the Company.
21. Entire Agreement. This Agreement and the Indemnity
Agreement referred to herein sets forth the entire agreement and
understanding between the parties relating to the subject matter
contained herein and supersedes all other agreements, oral or
written, between the parties relating to such subject matter,
including, but not limited to, any and all agreements between the
parties concerning employment, compensation, or profit sharing.
22. Amendment. This Agreement may be amended only by an
instrument in writing executed by both parties hereto.
23. Governing Law. This Agreement shall be construed and
enforced in accordance with and governed by the law of the State
of California.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
REALTY INCOME CORPORATION EMPLOYEE
By: ____________________________ ___________________________
Page 32
<PAGE>
EXHIBIT A
SEVERANCE AGREEMENT AND GENERAL RELEASE
---------------------------------------
This Severance Agreement and General Release is entered into
as of ______, 19___, by and between Realty Income Corporation
(the "Company"), and ____________ (hereinafter "Employee").
IN CONSIDERATION of the severance compensation as herein
provided, to which Employee is not otherwise entitled, Employee
does hereby unconditionally, irrevocably and absolutely release
and discharge the Company, and its directors, officers,
employees, shareholders, agents, successors and assigns and any
related or subsidiary corporations or entities, from any and all
loss, liability, claims, demands, causes of action, or suit of
any type related directly or indirectly or in any way connected
with Employee's termination of employment with the Company. This
release includes, but is not limited to, any claims of employment
discrimination arising under federal or state laws, including the
Age Discrimination in Employment Act of 1967, as amended.
IN FURTHER CONSIDERATION THEREOF, Employee irrevocably and
absolutely agrees that he will not prosecute nor allow to be
prosecuted on his behalf, in any administrative agency, whether
federal or state, or in any court, whether federal or state, or
before any arbitrator, any claim, demand or grievance of any type
related to the matters released above, it being an intention of
the parties that with the execution by Employee of this Release,
the Company, and each of their officers, directors, employees,
shareholders, agents, successors and assigns and all subsidiary
and related corporations and entities will be absolutely,
unconditionally and forever discharged of and from all
obligations to or on behalf of Employee related in any way to his
termination of employment with the Company.
Employee shall receive the following severance compensation:
a) The total sum of ____________ ($________), payable
in __________(___) semi-monthly installments of ___________
($_________), less appropriate payroll deductions, which payments
shall commence on ___________, and continue at regular payroll
intervals through ___________.
b) Group medical insurance paid for by the Company
through ___________, or until Employee becomes covered under
another group medical insurance plan, whichever occurs first.
Except as set forth herein, Employee shall not be entitled
to any benefits as an employee or former employee of the Company.
Page 33
<PAGE>
As a condition of the foregoing payments and benefits,
Employee agrees to preserve the confidentiality of all trade
secrets and other confidential information of the Company and
each of their affiliates, and will not now or in the future
disrupt, damage, impair or interfere with the business of the
Company, or their affiliates, whether by way of interfering with
or raiding their employees, disrupting their relationships with
customers, agents, representatives or vendors or otherwise.
Employee agrees to cooperate with the Company in
accomplishing a smooth and orderly transition in the transfer of
responsibilities of Employee to other employees of the Company,
particularly including pending matters of which Employee has the
principal knowledge and background information. In this regard,
Employee agrees to respond in a timely fashion to the questions
which may be presented occasionally by the Company. Such
cooperation and responses shall not entitle Employee to any
additional compensation beyond the severance compensation
specified herein above, so long as such cooperation and responses
do not unreasonably interfere with Employee's other gainful
employment or efforts to secure gainful employment.
Employee does expressly waive all of the benefits and rights
granted to him pursuant to Civil Code Section 1542, which
provides and reads as follows:
"A general release does not extend to claims which the creditor
does not know of or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Employee does certify that he has read all of this Severance
Agreement and General Release and the quoted Civil Code Section,
and that he fully understands all of the same, and that he has
been given the opportunity, if he desires, to review the terms of
this Severance Agreement and General Release with counsel.
Employee expressly declares and represents that no promise,
inducement or agreement not herein expressed has been made to him
and that this Severance Agreement and General Release contains
the entire agreement between the parties, and that the terms
hereof are contractual and not a mere recital.
This Severance Agreement and General Release may be pleaded
as a full and complete defense to, and may be used as the basis
for an injunction against, any action, suit or other proceeding
which may be prosecuted, instituted or attempted by Employee in
breach hereof.
Employee further agrees that in the event an action or
proceeding is instituted by Employee or the Company or any party
Page 34
<PAGE>
released hereby in order to enforce the terms or provisions
hereof, the prevailing party shall be entitled to an award of
reasonable costs and attorneys' fees.
This Severance Agreement and General Release shall bind
Employee, his heirs, successors, agents, representatives and
assigns, and each of them.
This Severance Agreement and General Release shall inure to
the benefit of the successors and assigns of the respective
parties hereto.
Employee acknowledges that he has been given twenty-one (21)
days in which to consider the terms of the release provisions
contained herein. The release contained herein shall not become
effective or enforceable until seven (7) days after employee
signs this release. Payment to employee of the sums provided
under this Agreement shall commence seven (7) days after employee
signs this release.
IN WITNESS WHEREOF, the undersigned have executed this
Severance Agreement and General Release as of the date first
above written.
REALTY INCOME CORPORATION EMPLOYEE
By: ____________________________ ___________________________
Page 35
