As Filed with the Securities and Exchange Commission on November 10, 1999
Registration No. 33-95708
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NUMBER 1 TO
FORM S-8/A
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 of (I.R.S. Employer
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 the plan)
----------------------------------------
MICHAEL R. PFEIFFER, ESQ. Copy to:
Senior Vice President, WILLIAM J. CERNIUS, ESQ.
General Counsel and Secretary LATHAM & WATKINS
REALTY INCOME CORPORATION 650 Town Center Drive,
220 West Crest Street Twentieth Floor
Escondido, California 92025-1707 Costa Mesa, California 92626-1925
(760) 741-2111 (714) 540-1235
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
----------------------------------------------------
(Cover continued on next page)
CALCULATION OF REGISTRATION FEE
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<TABLE>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Per Offering Registration
Registered Registered Share (2) Price (2) Fee
- ---------------- ---------- --------- ----------- ------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $23.04 $23,040,000 $6,406
(1)(3)
</TABLE>
[FN]
(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 at the end of each calendar
year. In August 1995, 500,000 shares were registered pursuant to
Form S-8 Registration Statement No. 33-95708. Only the 1,000,000
shares under the Plan are being newly registered hereunder.
(2) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(h). The Proposed Maximum Aggregate
Offering Price Per Share is the average of the high and low
prices of the Common Stock, as reported on the New York Stock
Exchange on November 9, 1999 and the weighted average exercise
price of outstanding options.
(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.
</FN>
- ----------------------------------------------------------------------
Proposed sale to take place as soon after the effective date of the
Registration Statement as options granted under the Plan are exercised.
Page 2
PART I
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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed
with or included in this Registration Statement (by incorporation by
reference or otherwise) in accordance with the rules and regulations
of the Securities and Exchange Commission (the "Commission").
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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.
Item 5. Named Experts and Counsel
- -----------------------------------
The consolidated financial statements and schedule of Realty Income
Corporation and subsidiaries as of December 31, 1998, and for each of
the years in the three year period ended December 31, 1998, have been
incorporated by reference in this registration statement in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing.
Item 8. Exhibits
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See Index to Exhibits on page 6.
Page 3
<PAGE>
SIGNATURES
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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 10th day of November,
1999.
REALTY INCOME CORPORATION
A Maryland corporation
By: \s\MICHAEL R. PFEIFFER
------------------------------
Michael R. Pfeiffer
Senior 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 November 9, 1999.
SIGNATURE TITLE
- --------- -----
\s\THOMAS A. LEWIS
- ------------------------------ Chief Executive Officer, Director
Thomas A. Lewis and Vice Chairman of the Board
\s\RICHARD J. VANDERHOFF
- ------------------------------ President, Chief Operating Officer
Richard J. VanDerhoff and Director
(signatures continued on next page)
Page 4
<PAGE>
(continued)
SIGNATURE TITLE
- --------- -----
\s\GARY M. MALINO
- ------------------------------ Chief Financial Officer, Senior
Gary M. Malino Vice President and Treasurer
(Principal Financial and
Accounting Officer)
\s\WILLIAM E. CLARK
- ------------------------------ Chairman of the Board and Director
William E. Clark
\s\DONALD R. CAMERON
- ------------------------------ Director
Donald R. Cameron
\s\ROGER P. KUPPINGER
- ------------------------------ Director
Roger P. Kuppinger
\s\MICHAEL D. MCKEE
- ------------------------------ Director
Michael D. McKee
\s\WILLARD H. SMITH JR
- ------------------------------ Director
Willard H. Smith Jr
Page 5
<PAGE>
INDEX TO EXHIBITS
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EXHIBIT
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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.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
Exhibit 5.1).
23.2 Consent of Independent Auditors.
24 Power of Attorney (included on the signature page to this
Registration Statement).
Page 6
FILE NUMBER 875770
Exhibit 5.1
November 10, 1999
Realty Income Corporation
220 West Crest Street
Escondido, California 92025
Re: Registration Statement on Form S-8/A
Registration No. 33-95708
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 an additional 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/A (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;
Page 1
<PAGE>
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;
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.
Page 2
<PAGE>
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.
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.
Page 3
<PAGE>
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.
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,
\s\BALLARD SPAHR ANDREWS & INGERSOLL, LLP
- -----------------------------------------
Ballard Spahr Andrews & Ingersoll, LLP
Page 4
Exhibit 23.2
The Board of Directors
Realty Income Corporation
We consent to the use of our report incorporated herein by reference
and to the reference to our firm under the heading "Named Experts and
Counsel" in the registration statement.
\s\KPMG LLP
-------------------------------
KPMG LLP
San Diego, California
November 9, 1999
