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Form S-8 REALTY INCOME CORP

August 19, 2022 4:14 PM EDT

As filed with the Securities and Exchange Commission on August 19, 2022
Registration No. 333-
UNITED STATES
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)
Maryland33-0580106
(State or Other Jurisdiction of
Incorporation or Organization)
(IRS Employer
Identification No.)
11995 El Camino Real
San Diego, California
92130
(Address of Principal Executive Offices)(Zip Code)

Realty Income Corporation 2021 Incentive Award Plan
(Full Title of the Plan)

Bianca A. Martinez
Senior Vice President, Associate General Counsel and Assistant Secretary
Realty Income Corporation
11995 El Camino Real
San Diego, California 92130
(858) 284-5000
(Name and Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

Copy to:
William J. Cernius, Esq.
Darren Guttenberg, Esq.
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626-1925
(714) 540-1235

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filerAccelerated filer
Non-accelerated filerSmaller reporting company
Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.







EXPLANATORY NOTE

This Registration Statement on Form S-8 (“Registration Statement”) relates to 6,186,101 shares of the common stock, par value $0.01 per share (“Common Stock”), of Realty Income Corporation (the “Registrant”) available for future issuance under the Realty Income Corporation 2021 Incentive Award Plan, as amended (the “2021 Plan”) in accordance with, and subject to the terms and conditions of, an exception under NYSE Section 303A.08 of the Listed Company Manual (“NYSE Section 303A.08”), which represents the number of shares of VEREIT, Inc. (“VEREIT”) common stock that were available for issuance under the VEREIT, Inc. 2021 Equity Incentive Plan (the “2021 VEREIT Plan”) upon the closing of the Merger, and were assumed by the Registrant for issuance under the 2021 Plan, as appropriately adjusted to reflect the transactions contemplated by that certain merger agreement (the “Merger Agreement”), by and among the Registrant, VEREIT, and certain other parties as set forth therein, including the merger (the “Merger”) between the Registrant and VEREIT pursuant thereto (including the application of the exchange ratio under the Merger Agreement). The 2021 VEREIT Plan was approved by the stockholders of VEREIT prior to the closing of the Merger, and the 2021 VEREIT Plan was not adopted in contemplation of the Merger. Upon the closing of the Merger, VEREIT ceased to be a publicly traded company. In accordance with NYSE Section 303A.08, the shares available under the 2021 VEREIT Plan may be used for post-Merger grants of equity awards with respect to Common Stock, under either the 2021 Plan or another plan (including the 2021 Plan, as contemplated hereby), without further stockholder approval, so long as (1) the time during which the shares of Common Stock are available is not extended beyond the period when they would have been available under the 2021 VEREIT Plan, absent the Merger, and (2) the equity awards are granted to individuals who were employees, consultants or non-employee directors who provided services to VEREIT and/or its subsidiaries immediately prior to the Merger or were employees, consultants or non-employee directors who first commenced providing services to the Registrant or any of its subsidiaries on or following the Merger.

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in Part I of Form S-8 will be delivered in accordance with Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents, and the documents incorporated by reference in Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.
Incorporation of Documents by Reference.
The SEC allows the Registrant to incorporate by reference the information the Registrant files with it, which means that the Registrant can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this Registration Statement, and information that we file later with the SEC will automatically update and supersede this information. The Registrant incorporates by reference the following documents that the Registrant has filed, or may file, with the SEC:

The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022;
The Company’s Current Reports on Form 8-K filed with the SEC on January 14, 2022, April 28, 2022, May 19, 2022, June 16, 2022, July 12, 2022, and July 28, 2022; and
The description of the Company’s common stock contained in the Company’s registration statement on Form 8-A, filed under Section 12 of the Exchange Act on August 4, 1992, including any subsequently filed amendments and reports updating such description, as updated by Exhibit 4.20 to the 2021 Form 10-K.




In addition, all documents the Registrant files with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any information that the Registrant later files with the SEC will automatically update and supersede the information and statements contained in a document incorporated or deemed to be incorporated by reference herein. Any such information or statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute part of this Registration Statement. Under no circumstances will any information “furnished” to the SEC pursuant to applicable rules and regulations be deemed incorporated herein by reference unless such information expressly provides to the contrary.

Item 6.
Indemnification of Directors and Officers.
The Maryland General Corporation Law (the “MGCL”) permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from:

actual receipt of an improper benefit or profit in money, property or services, or
active and deliberate dishonesty established by a final judgment as being material to the cause of action.

The Registrant’s charter contains such a provision which eliminates such liability to the maximum extent permitted by the MGCL.

The Registrant’s charter authorizes it, and the Registrant’s bylaws obligate it, to the maximum extent permitted by Maryland law, to indemnify and to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to any present or former director or officer who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity or any individual who, while serving as one of the Registrant’s directors or officers and at the Registrant’s request, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to, or witness in, the proceeding by reason of his or her service in that capacity. The Registrant’s charter and bylaws also permit it to indemnify and advance expenses to any person who served a predecessor of the Registrant in any of the capacities described above and to any employee or agent of the Registrant or its predecessor.
The MGCL requires a corporation (unless its charter provides otherwise, which the Registrant’s charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or are threatened to be made a party by reason of their service in those or other capacities unless it is established that (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under the MGCL, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses. In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it shall ultimately be determined that the standard of conduct was not met.

The Registrant has entered into indemnification agreements with its executive officers and directors. The indemnification agreements require, among other matters, that the Registrant indemnify its executive officers and directors to the fullest extent permitted by law and advance to the executive officers and directors all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under the indemnification agreements, the Registrant must also indemnify and advance all expenses incurred by executive officers and directors seeking to enforce their rights under the indemnification agreements and may cover executive officers and directors under its directors’ and officers’ liability insurance. Although the form of indemnification agreement offers substantially the same scope of coverage afforded by law, it provides greater assurance to directors



and executive officers that indemnification will be available, because, as a contract, it cannot be modified unilaterally in the future by its board of directors or the stockholders to alter or eliminate the rights it provides.

Item 8.
Exhibits.

A list of exhibits filed with this Registration Statement is contained in the exhibits index, which is incorporated by reference.

Item 9.
Undertakings.

The undersigned Registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

(6) The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.




(7) The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

EXHIBIT INDEX
Exhibit
Number
Description
3.10




24.1*
Power of Attorney (included in the signature page to this Registration Statement).

*Filed herewith.






SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on this 19th day of August, 2022.

REALTY INCOME CORPORATION
By:/s/Bianca A. Martinez
Bianca A. Martinez
Senior Vice President, Associate General Counsel and Assistant Secretary






POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Christie B. Kelly and Bianca A. Martinez, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and as of the dates indicated.

SignatureTitleDate
/s/ Sumit RoyPresident, Chief Executive Officer and DirectorAugust 19, 2022
Sumit Roy(Principal Executive Officer)
/s/ Christie B. KellyExecutive Vice President, Chief Financial Officer and TreasurerAugust 19, 2022
Christie B. Kelly(Principal Financial Officer)
/s/ Sean P. NugentSenior Vice President, Controller and Principal Accounting OfficerAugust 19, 2022
Sean P. Nugent(Principal Accounting Officer)
/s/ Michael D. McKeeDirectorAugust 19, 2022
Michael D. McKee
/s/ Priscilla AlmodovarDirectorAugust 19, 2022
Priscilla Almodovar
/s/ Jacqueline BradyDirectorAugust 19, 2022
Jacqueline Brady
/s/ Larry ChapmanDirectorAugust 19, 2022
Larry Chapman




/s/ Reginald H. GilyardDirectorAugust 19, 2022
Reginald H. Gilyard
/s/ Mary Hogan PreusseDirectorAugust 19, 2022
Mary Hogan Preusse
/s/ Priya Cherian HuskinsDirectorAugust 19, 2022
Priya Cherian Huskins
/s/ Gerardo I. LopezDirectorAugust 19, 2022
Gerardo I. Lopez
/s/ Gregory T. McLaughlinDirectorAugust 19, 2022
Gregory T. McLaughlin
/s/ Ronald L. MerrimanDirectorAugust 19, 2022
Ronald L. Merriman



Exhibit 5.1

[LETTERHEAD OF VENABLE LLP]


August 19, 2022

Realty Income Corporation 11995 El Camino Real
San Diego, California 92130
Re:    Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as 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 up to 6,186,101 shares (the “Shares”) of common stock, $0.01 par value per share, of the Company (the “Common Stock”), which may be issued from time to time pursuant to the Realty Income Corporation 2021 Incentive Award Plan, as amended (the “2021 Plan”). The Shares represent the number of shares of common stock, $0.01 par value per share, of VEREIT, Inc., a Maryland corporation (“VEREIT”), that were available for issuance under the VEREIT, Inc. 2021 Equity Incentive Plan upon closing of the merger between the Company and VEREIT pursuant to the Merger Agreement (as defined below). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under 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 by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3.The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4.A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;






Realty Income Corporation August 19, 2022
Page 2


5.Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the issuance of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;
6.The Agreement and Plan of Merger, dated as of April 29, 2021, as amended by the First Amendment to Agreement and Plan of Merger, dated as of June 25, 2021 (the “Merger Agreement”), by and among the Company, Rams MD Subsidiary I, Inc., a Maryland corporation, Rams Acquisition Sub II, LLC, a Delaware limited liability company, VEREIT and VEREIT Operating Partnership, L.P., a Delaware limited partnership;
7.A certificate executed by an officer of the Company, dated as of the date hereof; and
8.Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, 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.
4.All Documents submitted to us as originals are authentic. The form and content of all 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 Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of 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 in violation of any restriction or limitation on ownership and transfer contained in Article VII of the Charter or in the 2021 Plan. Upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.







Realty Income Corporation August 19, 2022
Page 3


6.Each stock option, stock appreciation right, restricted stock, restricted stock unit, award, right or other security exercisable or exchangeable for a Share pursuant to the 2021 Plan (each, an “Award”) will be duly authorized and validly granted in accordance with the 2021 Plan, and each Award will be exercised or exchanged in accordance with the terms of the 2021 Plan and such Award, including any stock option agreement or other form of award agreement entered into in connection therewith.
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 issuance of the Shares has been duly authorized and, when and to the extent issued and delivered by the Company in accordance with the Registration Statement, the Resolutions, the Merger Agreement, the 2021 Plan and any stock option agreement or other form of award agreement utilized under the 2021 Plan, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the 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 federal or state securities laws, including the securities laws of the State of Maryland. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. 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 for submission to the Commission as an exhibit to the Registration Statement.  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/Venable LLP






Exhibit 23.1



Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated February 23, 2022, with respect to the consolidated financial statements and financial statement schedule III of Realty Income Corporation, and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG, LLP
San Diego, California
August 18, 2022




Exhibit 107

Calculation of Filing Fee Table

Form S-8
(Form Type)

REALTY INCOME CORPORATION
(Exact Name of Registrant as Specified in Its Charter)

Table 1: Newly Registered Securities

Security TypeSecurity Class TitleFee Calculation RuleAmount Registered (1)(2)Proposed Maximum Offering Price per UnitMaximum Aggregate Offering PriceFee RateAmount of Registration Fee
EquityCommon Stock, par value $0.01 per share, issuable under the Realty Income Corporation 2021 Incentive Award Plan457(c) and 457(h) (3)6,186,101 shares (2)$73.285 (3)$453,348,411.79 (3)0.0000927$42,025.40
Total Offering Amounts$453,348,411.79$42,025.40
Total Fee Offsets$0.00
Net Fee Due$42,025.40

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities to be offered or issued pursuant to the Realty Income Corporation 2021 Incentive Award Plan, as amended (the “2021 Plan”), from stock splits, stock dividends or similar transactions with respect to the common stock, par value $0.01 per share (“Common Stock”), of Realty Income Corporation (the “Registrant”).

(2) Represents 6,186,101 shares of Common Stock available for future issuance under the 2021 Plan in accordance with, and subject to the terms and conditions of, an exception under NYSE Section 303A.08 of the Listed Company Manual (“NYSE Section 303A.08”), which shares consist of the shares of common stock of VEREIT, Inc. (“VEREIT”) that were available for issuance under the VEREIT, Inc. 2021 Equity Incentive Plan (the “2021 VEREIT Plan”) upon the closing of the merger (the “Merger”) between the Registrant and VEREIT pursuant to that certain merger agreement (the “Merger Agreement”), by and among the Registrant, VEREIT, and certain other parties as set forth therein and were assumed by the Registrant for issuance under the 2021 Plan, as appropriately adjusted to reflect the transactions contemplated by the Merger Agreement.

(3) Pursuant to Rule 457(c) and (h) under the Securities Act, the proposed maximum offering price per share was determined based on the average of the high and low prices of Common Stock reported by the New York Stock Exchange on August 18, 2022.




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