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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 6/29/21 VEREIT, Inc. DEFM14A 1:5.1M Toppan Merrill/FA |
Document/Exhibit Description Pages Size 1: DEFM14A Definitive Proxy Statement - Merger or Acquisition HTML 2.13M
tm2120273-1_defm14a - none - 29.9064195s |
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Sincerely,
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Sincerely,
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Realty Income Corporation
11995 El Camino Real San Diego, California 92130 (858) 284-5000 Attn.: Investor Relations |
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or
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or
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Georgeson LLC
1290 Avenue of the Americas, 9th Floor New York, New York 10104 Call Toll-Free: (866) 785-7395 Email: realtyincome@georgeson.com |
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Okapi Partners LLC
1212 Avenue of the Americas, 24th Floor New York, New York 10036 Call Toll-Free: (855) 305-0856 Email: info@okapipartners.com |
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if you are a Realty Income stockholder:
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if you are a VEREIT stockholder:
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Georgeson LLC
1290 Avenue of the Americas, 9th Floor New York, New York 10104 Call Toll-Free: (866) 785-7395 Email: realtyincome@georgeson.com |
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Okapi Partners LLC
1212 Avenue of the Americas, 24th Floor New York, New York 10036 Call Toll-Free: (855) 305-0856 Email: info@okapipartners.com |
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Realty Income Common
Stock (Close) |
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VEREIT Common
Stock (Close) |
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VEREIT Common
Stock (adjusted by Exchange Ratio) (Close) |
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| | | $ | 68.60 | | | | | $ | 41.26 | | | | | $ | 48.36 | | | |
| | | $ | 67.48 | | | | | $ | 46.71 | | | | | $ | 47.57 | | |
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Realty Income
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VEREIT
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Historical
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Pro Forma
for Merger |
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Historical
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Pro Forma
for Merger |
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Book earnings per share
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| | | $ | 0.26 | | | | | $ | 1.15 | | | | | $ | 0.28 | | | | | $ | 0.42 | | | | | $ | 0.50 | | | | | $ | 0.72 | | | | | $ | 0.20 | | | | | $ | 0.30 | | |
Diluted earnings per share
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| | | $ | 0.26 | | | | | $ | 1.14 | | | | | $ | 0.28 | | | | | $ | 0.42 | | | | | $ | 0.50 | | | | | $ | 0.72 | | | | | $ | 0.20 | | | | | $ | 0.30 | | |
Cash dividends declared per share
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| | | $ | 0.70 | | | | | $ | 2.80 | | | | | $ | 0.70(1) | | | | | $ | 2.80(1) | | | | | $ | 0.46 | | | | | $ | 1.84 | | | | | $ | 0.50(2) | | | | | $ | 1.97 | | |
Book value per share (period end)
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| | | $ | 30.88 | | | | | | | | | | | $ | 41.87 | | | | | | | | | | | $ | 29.43 | | | | | | | | | | | $ | 29.52 | | | | | | | | |
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Implied Exchange Ratio Range:
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Merger Exchange Ratio
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0.516x – 0.878x
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0.705x
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Selected Publicly Traded Company
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Enterprise
Value / 2021E EBITDA |
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Enterprise
Value / 2022E EBITDA |
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Price /
2021E FFO |
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Price /
2022E FFO |
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Price /
2021E AFFO |
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Price /
2022E AFFO |
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Premium or
Discount to Consensus NAV |
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Realty Income Corp.
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| | | | 20.4x | | | | | | 18.2x | | | | | | 20.4x | | | | | | 18.8x | | | | | | 19.7x | | | | | | 18.7x | | | | | | 31.9% | | |
W.P. Carey Inc.
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| | | | 18.3x | | | | | | 17.3x | | | | | | 15.9x | | | | | | 15.4x | | | | | | 15.0x | | | | | | 14.6x | | | | | | 10.1% | | |
STORE Capital Corporation
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| | | | 19.2x | | | | | | 16.9x | | | | | | 19.1x | | | | | | 17.8x | | | | | | 18.5x | | | | | | 17.4x | | | | | | 39.2% | | |
VEREIT, Inc.
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| | | | 15.4x | | | | | | 14.5x | | | | | | 12.9x | | | | | | 12.4x | | | | | | 12.8x | | | | | | 12.3x | | | | | | 1.5% | | |
National Realty Properties, Inc.
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| | | | 19.2x | | | | | | 17.9x | | | | | | 18.0x | | | | | | 17.0x | | | | | | 16.7x | | | | | | 16.3x | | | | | | 12.9% | | |
Spirit Realty Capital, Inc.
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| | | | 16.8x | | | | | | 15.1x | | | | | | 15.5x | | | | | | 14.7x | | | | | | 15.1x | | | | | | 14.5x | | | | | | 14.3% | | |
Agree Realty Corporation
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| | | | 20.5x | | | | | | 16.7x | | | | | | 20.4x | | | | | | 19.1x | | | | | | 20.8x | | | | | | 19.5x | | | | | | 20.8% | | |
Broadstone Net Lease, Inc.
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| | | | 15.1x | | | | | | 13.8x | | | | | | 13.6x | | | | | | 13.1x | | | | | | 15.0x | | | | | | 14.1x | | | | | | (0.6)% | | |
Essential Properties Realty Trust, Inc.
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| | | | 20.6x | | | | | | 16.2x | | | | | | 21.0x | | | | | | 19.1x | | | | | | 21.1x | | | | | | 19.0x | | | | | | 45.7% | | |
Four Corners Property Trust, Inc.
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| | | | 19.7x | | | | | | 17.8x | | | | | | 19.1x | | | | | | 18.1x | | | | | | 19.1x | | | | | | 18.3x | | | | | | 16.9% | | |
Metric
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Selected Range: Realty Income
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Implied Equity Value Range Per Share:
Realty Income |
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Enterprise Value / 2021E EBITDA
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19.00x – 21.00x
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$62.81 – $71.49
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Enterprise Value / 2022E EBITDA
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16.00x – 18.50x
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$57.53 – $69.59
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Share price / 2021E FFO
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18.00x – 21.00x
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$59.19 – $69.05
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Share Price / 2022E FFO
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17.00x – 19.50x
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$59.89 – $68.69
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Share price / 2021E AFFO
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16.50x – 21.00x
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$56.93 – $72.45
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Share Price / 2022E AFFO
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16.00x – 20.00x
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$56.77 – $70.96
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Premium (Discount) to NAV
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10.0% – 45.0%
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$57.44 – $75.72
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Metric
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Selected Range: VEREIT
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Implied Equity Value Range Per Share:
VEREIT |
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Enterprise Value / 2021E EBITDA
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15.00x – 19.00x
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$39.50 – $56.95
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Enterprise Value / 2022E EBITDA
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13.50x – 17.50x
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$34.36 – $52.25
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Share price / 2021E FFO
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12.50x – 16.50x
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$40.51 – $53.48
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Share Price / 2022E FFO
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12.00x – 16.00x
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$40.34 – $53.78
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Share price / 2021E AFFO
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12.50x – 15.50x
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$40.75 – $50.53
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Share Price / 2022E AFFO
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12.00x – 15.00x
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$40.66 – $50.82
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Premium (Discount) to NAV
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(5.0)% – 15.0%
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$38.67 – $46.81
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Metric
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Implied Exchange Ratio Range
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Enterprise Value / 2021E EBITDA
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0.552x – 0.907x
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Enterprise Value / 2022E EBITDA
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0.494x – 0.908x
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Share price / 2021E FFO
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0.587x – 0.904x
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Share Price / 2022E FFO
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0.587x – 0.898x
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Share price / 2021E AFFO
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0.562x – 0.888x
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Share Price / 2022E AFFO
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0.573x – 0.895x
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Premium (Discount) to NAV
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0.511x – 0.815x
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Implied Per Share Equity Value
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Low
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High
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VEREIT P/2021E AFFO
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| | | $ | 42.50 | | | | | $ | 49.00 | | |
VEREIT P/2022E AFFO
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| | | $ | 41.50 | | | | | $ | 50.00 | | |
VEREIT Implied Capitalization Rate
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| | | $ | 44.25 | | | | | $ | 52.75 | | |
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Implied Per Share Equity Value
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Low
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High
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Realty Income P/2021E AFFO
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| | | $ | 51.75 | | | | | $ | 71.50 | | |
Realty Income P/2022E AFFO
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| | | $ | 51.50 | | | | | $ | 69.25 | | |
Realty Income Implied Capitalization Rate
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| | | $ | 59.25 | | | | | $ | 71.75 | | |
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Implied Per Share Equity Value
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Low
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High
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VEREIT Discounted Cash Flow
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| | | $ | 32.50 | | | | | $ | 44.25 | | |
Realty Income Discounted Cash Flow
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| | | $ | 50.25 | | | | | $ | 70.00 | | |
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Implied Exchange Ratios
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Low
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High
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P/2021E AFFO
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| | | | 0.594x | | | | | | 0.947x | | |
P/2022E AFFO
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| | | | 0.599x | | | | | | 0.971x | | |
Implied Capitalization Rate
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| | | | 0.617x | | | | | | 0.890x | | |
Discounted Cash Flow
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| | | | 0.464x | | | | | | 0.881x | | |
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Year Ended December 31,
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2021E
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2022E
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2023E
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(in millions, other than per share data)
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Total Revenue
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| | | $ | 1,823 | | | | | $ | 2,013 | | | | | $ | 2,310 | | |
Total Net Operating Income (NOI)(1)
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| | | $ | 1,714 | | | | | $ | 1,900 | | | | | $ | 2,181 | | |
EBITDA(2)
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| | | $ | 1,624 | | | | | $ | 1,805 | | | | | $ | 2,072 | | |
Funds from Operations (FFO)(3)
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| | | $ | 1,253 | | | | | $ | 1,452 | | | | | $ | 1,689 | | |
Adjusted Funds from Operations (AFFO)(4)
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| | | $ | 1,314 | | | | | $ | 1,462 | | | | | $ | 1,696 | | |
FFO / Share(3)(5)
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| | | $ | 3.29 | | | | | $ | 3.52 | | | | | $ | 3.80 | | |
AFFO / Share(4)(6)
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| | | $ | 3.45 | | | | | $ | 3.55 | | | | | $ | 3.81 | | |
Dividends / Share(7)
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| | | $ | 2.82 | | | | | $ | 2.85 | | | | | $ | 2.95 | | |
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Year Ended December 31,
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2021E
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2022E
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2023E
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(in millions, other than per share data)
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Total Revenue
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| | | $ | 1,206 | | | | | $ | 1,238 | | | | | $ | 1,292 | | |
Total Net Operating Income (NOI)(1)
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| | | $ | 1,069 | | | | | $ | 1,098 | | | | | $ | 1,147 | | |
EBITDA(2)
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| | | $ | 1,009 | | | | | $ | 1,033 | | | | | $ | 1,080 | | |
Funds from Operations (FFO)(3)
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| | | $ | 744 | | | | | $ | 781 | | | | | $ | 845 | | |
Adjusted Funds from Operations (AFFO)(4)
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| | | $ | 748 | | | | | $ | 787 | | | | | $ | 851 | | |
FFO / Share(3)(5)
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| | | $ | 3.24 | | | | | $ | 3.36 | | | | | $ | 3.48 | | |
AFFO / Share(4)(6)
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| | | $ | 3.26 | | | | | $ | 3.39 | | | | | $ | 3.50 | | |
Dividends / Share(7)
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| | | $ | 1.93 | | | | | $ | 2.03 | | | | | $ | 2.10(8) | | |
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Year Ending December 31,
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2021E
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2022E
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2023E
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(in millions, except
per share data) |
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Cash Net Operating Income (Cash NOI)(1)
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| | | $ | 1,047 | | | | | $ | 1,107 | | | | | $ | 1,207 | | |
Adjusted Funds from Operations (AFFO)(2)
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| | | $ | 753 | | | | | $ | 816 | | | | | $ | 911 | | |
Weighted Average Shares
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| | | | 231 | | | | | | 241 | | | | | | 254 | | |
AFFO / Share
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| | | $ | 3.26 | | | | | $ | 3.39 | | | | | $ | 3.59 | | |
Net Acquisitions(3)
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| | | $ | 794 | | | | | $ | 1,450 | | | | | $ | 1,450 | | |
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Year Ending December 31,
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2021E
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2022E
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2023E
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(in millions, except
per share data) |
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Cash Net Operating Income (Cash NOI)(1)(2)
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| | | $ | 1,704 | | | | | $ | 1,885 | | | | | $ | 2,160 | | |
Adjusted Funds from Operations (AFFO)(1)
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| | | $ | 1,314 | | | | | $ | 1,462 | | | | | $ | 1,696 | | |
Weighted Average Shares
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| | | | 381 | | | | | | 412 | | | | | | 445 | | |
AFFO / Share
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| | | $ | 3.45 | | | | | $ | 3.55 | | | | | $ | 3.81 | | |
Net Acquisitions
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| | | $ | 3,418 | | | | | $ | 3,325 | | | | | $ | 3,900 | | |
Named Executive Officer
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Cash ($)(1)
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Equity($)(2)
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Perquisites /
Benefits($)(3) |
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Total ($)(4)
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Glenn Rufrano
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| | | | 8,128,767 | | | | | | 20,279,508 | | | | | | 30,237 | | | | | | 28,438,512 | | |
Michael J. Bartolotta
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| | | | 2,701,089 | | | | | | 4,285,241 | | | | | | 12,919 | | | | | | 6,999,249 | | |
Lauren Goldberg
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| | | | 2,383,572 | | | | | | 3,958,242 | | | | | | 7,393 | | | | | | 6,349,207 | | |
Paul H. McDowell
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| | | | 2,510,579 | | | | | | 4,156,795 | | | | | | 12,919 | | | | | | 6,680,293 | | |
Thomas W. Roberts
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| | | | 2,574,082 | | | | | | 5,024,804 | | | | | | 15,615 | | | | | | 7,614,501 | | |
Named Executive Officer
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Severance ($)
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Prorated Bonus ($)
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Total ($)
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Glenn Rufrano
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| | | | 7,500,000 | | | | | | 628,767 | | | | | | 8,128,767 | | |
Michael J. Bartolotta
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| | | | 2,415,000 | | | | | | 286,089 | | | | | | 2,701,089 | | |
Lauren Goldberg
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| | | | 2,152,500 | | | | | | 231,072 | | | | | | 2,383,572 | | |
Paul H. McDowell
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| | | | 2,257,500 | | | | | | 253,079 | | | | | | 2,510,579 | | |
Thomas W. Roberts
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| | | | 2,310,000 | | | | | | 264,082 | | | | | | 2,574,082 | | |
Named Executive Officer
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VEREIT Stock
Options ($) |
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VEREIT RSU
Awards ($) |
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Dividend
Equivalents ($) |
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Total ($)
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Glenn Rufrano
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| | | | 485,675 | | | | | | 18,917,513 | | | | | | 876,320 | | | | | | 20,279,508 | | |
Michael J. Bartolotta
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| | | | 485,675 | | | | | | 3,640,053 | | | | | | 159,513 | | | | | | 4,285,241 | | |
Lauren Goldberg
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| | | | 485,675 | | | | | | 3,326,804 | | | | | | 145,763 | | | | | | 3,958,242 | | |
Paul H. McDowell
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| | | | 485,675 | | | | | | 3,520,788 | | | | | | 150,332 | | | | | | 4,156,795 | | |
Thomas W. Roberts
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| | | | 485,675 | | | | | | 4,345,998 | | | | | | 193,131 | | | | | | 5,024,804 | | |
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Realty Income Common
Stock |
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VEREIT Common Stock
|
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Date
|
| |
High
|
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Low
|
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Close
|
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High
|
| |
Low
|
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Close
|
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| | | $ | 69.33 | | | | | $ | 68.50 | | | | | $ | 68.60 | | | | | $ | 41.65 | | | | | $ | 41.19 | | | | | $ | 41.26 | | | |
| | | $ | 68.10 | | | | | $ | 67.46 | | | | | $ | 67.48 | | | | | $ | 47.16 | | | | | $ | 46.69 | | | | | $ | 46.71 | | |
| | |
Realty Income Common
Stock |
| |
VEREIT Common Stock
|
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Date
|
| |
High
|
| |
Low
|
| |
Close
|
| |
High
|
| |
Low
|
| |
Close
|
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| | | $ | 69.33 | | | | | $ | 68.50 | | | | | $ | 68.60 | | | | | $ | 48.88 | | | | | $ | 48.29 | | | | | $ | 48.36 | | | |
| | | $ | 68.10 | | | | | $ | 67.46 | | | | | $ | 67.48 | | | | | $ | 48.01 | | | | | $ | 47.56 | | | | | $ | 47.57 | | |
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High
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Low
|
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Dividend
Declared |
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2018 | | | | | | | | | | | | | | | | | | | |
First Quarter
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| | | $ | 57.07 | | | | | $ | 47.26 | | | | | $ | 0.6575 | | |
Second Quarter
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| | | $ | 54.99 | | | | | $ | 48.81 | | | | | $ | 0.6590 | | |
Third Quarter
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| | | $ | 59.18 | | | | | $ | 52.74 | | | | | $ | 0.6605 | | |
Fourth Quarter
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| | | $ | 66.85 | | | | | $ | 55.56 | | | | | $ | 0.6620 | | |
2019 | | | | | | | | | | | | | | | | | | | |
First Quarter
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| | | $ | 74.14 | | | | | $ | 61.60 | | | | | $ | 0.6770 | | |
Second Quarter
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| | | $ | 73.94 | | | | | $ | 66.21 | | | | | $ | 0.6785 | | |
Third Quarter
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| | | $ | 77.50 | | | | | $ | 67.70 | | | | | $ | 0.6800 | | |
Fourth Quarter
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| | | $ | 82.17 | | | | | $ | 71.45 | | | | | $ | 0.6815 | | |
2020 | | | | | | | | | | | | | | | | | | | |
First Quarter
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| | | $ | 84.92 | | | | | $ | 38.00 | | | | | $ | 0.6980 | | |
Second Quarter
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| | | $ | 65.56 | | | | | $ | 43.41 | | | | | $ | 0.6995 | | |
Third Quarter
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| | | $ | 66.80 | | | | | $ | 56.33 | | | | | $ | 0.7010 | | |
Fourth Quarter
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| | | $ | 65.09 | | | | | $ | 57.09 | | | | | $ | 0.7025 | | |
2021 | | | | | | | | | | | | | | | | | | | |
First Quarter
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| | | $ | 64.60 | | | | | $ | 57.00 | | | | | $ | 0.7040 | | |
Second Quarter (through June 22, 2021)
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| | | $ | 71.84 | | | | | $ | 63.64 | | | | | $ | 0.7055 | | |
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High
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| |
Low
|
| |
Dividend
Declared |
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2018 | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 39.15 | | | | | $ | 33.10 | | | | | $ | 0.6875 | | |
Second Quarter
|
| | | $ | 37.85 | | | | | $ | 32.60 | | | | | $ | 0.6875 | | |
Third Quarter
|
| | | $ | 40.00 | | | | | $ | 35.58 | | | | | $ | 0.6875 | | |
Fourth Quarter
|
| | | $ | 39.55 | | | | | $ | 34.40 | | | | | $ | 0.6875 | | |
2019 | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 42.80 | | | | | $ | 35.00 | | | | | $ | 0.6875 | | |
Second Quarter
|
| | | $ | 48.58 | | | | | $ | 39.63 | | | | | $ | 0.6875 | | |
Third Quarter
|
| | | $ | 50.65 | | | | | $ | 43.85 | | | | | $ | 0.6875 | | |
Fourth Quarter
|
| | | $ | 50.25 | | | | | $ | 45.10 | | | | | $ | 0.6875 | | |
2020 | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 50.90 | | | | | $ | 17.78 | | | | | $ | 0.6875 | | |
Second Quarter
|
| | | $ | 36.80 | | | | | $ | 19.00 | | | | | $ | 0.3850 | | |
Third Quarter
|
| | | $ | 36.40 | | | | | $ | 29.85 | | | | | $ | 0.3850 | | |
Fourth Quarter
|
| | | $ | 39.03 | | | | | $ | 30.05 | | | | | $ | 0.3850 | | |
2021 | | | | | | | | | | | | | | | | | | | |
First Quarter
|
| | | $ | 40.67 | | | | | $ | 34.76 | | | | | $ | 0.4620 | | |
Second Quarter (through June 22, 2021)
|
| | | $ | 49.77 | | | | | $ | 38.89 | | | | | $ | 0.4620 | | |
| | |
Realty Income
Historical, As Reclassified (Note 3) |
| |
VEREIT
Historical, As Reclassified (Note 3) |
| |
Merger
Adjustments (Note 4 and 5) |
| |
Item in
Note 5 |
| |
Pro Forma
Combined |
| ||||||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Real estate held for investment, at cost:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
Land
|
| | | $ | 6,672,885 | | | | | $ | 2,698,232 | | | | | $ | 593,773 | | | |
[1]
|
| | | $ | 9,964,890 | | |
Buildings and improvements
|
| | | | 15,171,070 | | | | | | 9,941,903 | | | | | | 783,350 | | | |
[1]
|
| | | | 25,896,323 | | |
Total real estate held for investment,
at cost |
| | | | 21,843,955 | | | | | | 12,640,135 | | | | | | 1,377,123 | | | | | | | | | 35,861,213 | | |
Less accumulated depreciation and amortization
|
| | | | (3,668,269) | | | | | | (2,909,417) | | | | | | 2,909,417 | | | |
[2]
|
| | | | (3,668,269) | | |
Real estate held for investment, net
|
| | | | 18,175,686 | | | | | | 9,730,718 | | | | | | 4,286,540 | | | | | | | | | 32,192,944 | | |
Real estate and lease intangibles held for sale, net
|
| | | | 22,500 | | | | | | 4,888 | | | | | | 6,412 | | | |
[3]
|
| | | | 33,800 | | |
Cash and cash equivalents
|
| | | | 183,984 | | | | | | 318,561 | | | | | | (374,066) | | | |
[8] [12]
|
| | | | 128,479 | | |
Accounts receivable, net
|
| | | | 307,017 | | | | | | 330,871 | | | | | | (278,871) | | | |
[4]
|
| | | | 359,017 | | |
Lease intangible assets, net
|
| | | | 1,820,146 | | | | | | 931,832 | | | | | | 1,779,006 | | | |
[5]
|
| | | | 4,530,984 | | |
Goodwill
|
| | | | 14,114 | | | | | | 1,337,773 | | | | | | (423,515) | | | |
[6]
|
| | | | 928,372 | | |
Other assets, net
|
| | | | 456,123 | | | | | | 322,715 | | | | | | 24,466 | | | |
[7]
|
| | | | 803,304 | | |
Total assets
|
| | | $ | 20,979,570 | | | | | $ | 12,977,358 | | | | | $ | 5,019,972 | | | | | | | | $ | 38,976,900 | | |
LIABILITIES AND EQUITY | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Distributions payable
|
| | | $ | 88,662 | | | | | $ | 106,989 | | | | | $ | (1,041) | | | |
[8]
|
| | | $ | 194,610 | | |
Accounts payable and accrued expenses
|
| | | | 200,168 | | | | | | 116,486 | | | | | | 110,000 | | | |
[9]
|
| | | | 426,654 | | |
Lease intangible liabilities, net
|
| | | | 313,907 | | | | | | 117,121 | | | | | | 382,580 | | | |
[10]
|
| | | | 813,608 | | |
Other liabilities
|
| | | | 277,325 | | | | | | 264,968 | | | | | | — | | | | | | | | | 542,293 | | |
Line of credit payable and commercial
paper |
| | | | 675,000 | | | | | | — | | | | | | — | | | | | | | | | 675,000 | | |
Term loan, net
|
| | | | 249,407 | | | | | | — | | | | | | — | | | | | | | | | 249,407 | | |
Mortgages payable, net
|
| | | | 282,037 | | | | | | 1,035,328 | | | | | | 61,075 | | | |
[11]
|
| | | | 1,378,440 | | |
Notes payable, net
|
| | | | 7,326,051 | | | | | | 4,586,252 | | | | | | 338,994 | | | |
[11]
|
| | | | 12,251,297 | | |
Total liabilities
|
| | | | 9,412,557 | | | | | | 6,227,144 | | | | | | 891,608 | | | | | | | | | 16,531,309 | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Preferred stock and paid-in capital
|
| | | | — | | | | | | 371,781 | | | | | | (371,781) | | | |
[12]
|
| | | | — | | |
Common stock and paid-in capital
|
| | | | 15,371,016 | | | | | | 12,981,320 | | | | | | (2,040,707) | | | |
[12]
|
| | | | 26,311,629 | | |
Distributions in excess of net income
|
| | | | (3,827,660) | | | | | | (6,610,678) | | | | | | 6,547,472 | | | |
[12]
|
| | | | (3,890,866) | | |
Accumulated other comprehensive (loss) income
|
| | | | (8,484) | | | | | | 634 | | | | | | (634) | | | |
[12]
|
| | | | (8,484) | | |
Total stockholders’ equity
|
| | | | 11,534,872 | | | | | | 6,743,057 | | | | | | 4,134,350 | | | | | | | | | 22,412,279 | | |
Noncontrolling interests
|
| | | | 32,141 | | | | | | 7,157 | | | | | | (5,986) | | | |
[13]
|
| | | | 33,312 | | |
Total equity
|
| | | | 11,567,013 | | | | | | 6,750,214 | | | | | | 4,128,364 | | | | | | | | | 22,445,591 | | |
Total liabilities and equity
|
| | | $ | 20,979,570 | | | | | $ | 12,977,358 | | | | | $ | 5,019,972 | | | | | | | | $ | 38,976,900 | | |
| | |
Realty Income
Historical |
| |
VEREIT
Historical, As Reclassified (Note 3) |
| |
Merger
Adjustments (Note 5) |
| |
Item in
Note 5 |
| |
Pro Forma
Combined |
| |
Item in
Note 5 |
| ||||||||||||||||||
REVENUE | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Rental (including reimbursable)
|
| | | $ | 439,365 | | | | | $ | 290,309 | | | | | $ | 18,460 | | | | | | [14] | | | | | $ | 748,134 | | | | | | | | |
Other
|
| | | | 3,439 | | | | | | 4,166 | | | | | | — | | | | | | | | | | | | 7,605 | | | | | | | | |
Total revenue
|
| | | | 442,804 | | | | | | 294,475 | | | | | | 18,460 | | | | | | | | | | | | 755,739 | | | | | | | | |
EXPENSES | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 177,985 | | | | | | 108,075 | | | | | | 95,789 | | | | | | [15] | | | | | | 381,849 | | | | | | | | |
Interest
|
| | | | 73,075 | | | | | | 60,736 | | | | | | (15,191) | | | | | | [16] | | | | | | 118,620 | | | | | | | | |
Property (including reimbursable)
|
| | | | 28,499 | | | | | | 30,605 | | | | | | 1,436 | | | | | | [17] | | | | | | 60,540 | | | | | | | | |
General and administrative
|
| | | | 20,796 | | | | | | 15,948 | | | | | | 3,356 | | | | | | [18] | | | | | | 40,100 | | | | | | | | |
Income taxes
|
| | | | 6,225 | | | | | | 928 | | | | | | — | | | | | | | | | | | | 7,153 | | | | | | | | |
Provisions for impairment
|
| | | | 2,720 | | | | | | 31,849 | | | | | | — | | | | | | | | | | | | 34,569 | | | | | | | | |
Total expenses
|
| | | | 309,300 | | | | | | 248,141 | | | | | | 85,390 | | | | | | | | | | | | 642,831 | | | | | | | | |
Gain on sales of real estate
|
| | | | 8,401 | | | | | | 76,074 | | | | | | — | | | | | | | | | | | | 84,475 | | | | | | | | |
Foreign currency and derivative gains, net
|
| | | | 804 | | | | | | — | | | | | | — | | | | | | | | | | | | 804 | | | | | | | | |
Equity in income of unconsolidated entities
|
| | | | — | | | | | | 447 | | | | | | — | | | | | | | | | | | | 447 | | | | | | | | |
Loss on extinguishment of debt
|
| | | | (46,473) | | | | | | (2,132) | | | | | | — | | | | | | | | | | | | (48,605) | | | | | | | | |
Income from continuing operations
|
| | | | 96,236 | | | | | | 120,723 | | | | | | (66,930) | | | | | | | | | | | | 150,029 | | | | | | | | |
Income attributable to noncontrolling interests
|
| | | | (296) | | | | | | (76) | | | | | | — | | | | | | | | | | | | (372) | | | | | | | | |
Income from continuing operations available to common stockholders
|
| | | $ | 95,940 | | | | | $ | 120,647 | | | | | $ | (66,930) | | | | | | | | | | | $ | 149,657 | | | | | | | | |
Income from continuing operations available to common stockholders per common share: | | ||||||||||||||||||||||||||||||||||||
Basic and diluted
|
| | | $ | 0.26 | | | | | $ | 0.50 | | | | | | | | | | | | | | | | | $ | 0.28 | | | | | | [20] | | |
Weighted average common shares outstanding: | | ||||||||||||||||||||||||||||||||||||
Basic
|
| | | | 371,522,607 | | | | | | 229,159,472 | | | | | | (67,435,394) | | | | | | | | | | | | 533,246,685 | | | | | | [20] | | |
Diluted
|
| | | | 371,601,901 | | | | | | 229,429,867 | | | | | | (67,204,427) | | | | | | | | | | | | 533,827,341 | | | | | | [20] | | |
| | |
Realty Income
Historical |
| |
VEREIT
Historical, As Reclassified (Note 3) |
| |
Merger
Adjustments (Note 5) |
| |
Item in
Note 5 |
| |
Pro Forma
Combined |
| |
Item in
Note 5 |
| ||||||||||||||||||
REVENUE | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Rental (including reimbursable)
|
| | | $ | 1,639,533 | | | | | $ | 1,158,285 | | | | | $ | 58,161 | | | | | | [14] | | | | | $ | 2,855,979 | | | | | | | | |
Other
|
| | | | 12,092 | | | | | | 9,691 | | | | | | — | | | | | | | | | | | | 21,783 | | | | | | | | |
Total revenue
|
| | | | 1,651,625 | | | | | | 1,167,976 | | | | | | 58,161 | | | | | | | | | | | | 2,877,762 | | | | | | | | |
EXPENSES | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 677,038 | | | | | | 452,008 | | | | | | 375,298 | | | | | | [15] | | | | | | 1,504,344 | | | | | | | | |
Interest
|
| | | | 309,336 | | | | | | 265,660 | | | | | | (63,016) | | | | | | [16] | | | | | | 511,980 | | | | | | | | |
Property (including reimbursable)
|
| | | | 104,603 | | | | | | 122,967 | | | | | | 5,744 | | | | | | [17] | | | | | | 233,314 | | | | | | | | |
General and administrative
|
| | | | 73,215 | | | | | | 68,487 | | | | | | 15,097 | | | | | | [18] | | | | | | 156,799 | | | | | | | | |
Income taxes
|
| | | | 14,693 | | | | | | 4,513 | | | | | | — | | | | | | | | | | | | 19,206 | | | | | | | | |
Provisions for impairment
|
| | | | 147,232 | | | | | | 65,075 | | | | | | — | | | | | | | | | | | | 212,307 | | | | | | | | |
Merger-related costs
|
| | | | — | | | | | | — | | | | | | 110,000 | | | | | | [19] | | | | | | 110,000 | | | | | | | | |
Total expenses
|
| | | | 1,326,117 | | | | | | 978,710 | | | | | | 443,123 | | | | | | | | | | | | 2,747,950 | | | | | | | | |
Gain on sales of real estate
|
| | | | 76,232 | | | | | | 95,292 | | | | | | — | | | | | | | | | | | | 171,524 | | | | | | | | |
Foreign currency and derivative gains (losses), net
|
| | | | 4,585 | | | | | | (85,392) | | | | | | — | | | | | | | | | | | | (80,807) | | | | | | | | |
Equity in income and gain on disposition of unconsolidated entities
|
| | | | — | | | | | | 3,539 | | | | | | — | | | | | | | | | | | | 3,539 | | | | | | | | |
Loss on extinguishment of debt
|
| | | | (9,819) | | | | | | (1,486) | | | | | | — | | | | | | | | | | | | (11,305) | | | | | | | | |
Income from continuing operations
|
| | | | 396,506 | | | | | | 201,219 | | | | | | (384,962) | | | | | | | | | | | | 212,763 | | | | | | | | |
Income attributable to noncontrolling interests
|
| | | | (1,020) | | | | | | (91) | | | | | | — | | | | | | | | | | | | (1,111) | | | | | | | | |
Income from continuing operations available to common stockholders
|
| | | $ | 395,486 | | | | | $ | 201,128 | | | | | $ | (384,962) | | | | | | | | | | | $ | 211,652 | | | | | | | | |
Income from continuing operations available to common stockholders per common share: | | ||||||||||||||||||||||||||||||||||||
Basic
|
| | | $ | 1.15 | | | | | $ | 0.72 | | | | | | | | | | | | | | | | | $ | 0.42 | | | | | | [20] | | |
Diluted
|
| | | $ | 1.14 | | | | | $ | 0.72 | | | | | | | | | | | | | | | | | $ | 0.42 | | | | | | [20] | | |
Weighted average common shares outstanding: | | ||||||||||||||||||||||||||||||||||||
Basic
|
| | | | 345,280,126 | | | | | | 217,548,175 | | | | | | (55,824,097) | | | | | | | | | | | | 507,004,204 | | | | | | [20] | | |
Diluted
|
| | | | 345,415,258 | | | | | | 217,862,005 | | | | | | (55,564,798) | | | | | | | | | | | | 507,712,465 | | | | | | [20] | | |
| | | | ||||
Rent and tenant receivables and other assets, net
|
| | | $ | 368,926 | | |
Less: Straight-line rent receivable, net
|
| | | | (278,871) | | |
Less: Accounts receivable, net
|
| | | | (52,000) | | |
Operating lease right-of-use assets
|
| | | | 191,443 | | |
Investments in unconsolidated entities
|
| | | | 80,513 | | |
Restricted cash
|
| | | | 12,704 | | |
Other assets, net, as presented
|
| | | $ | 322,715 | | |
| | | | ||||
Straight-line rent receivable, net
|
| | | $ | 278,871 | | |
Accounts receivable, net
|
| | | | 52,000 | | |
Accounts receivable, net, as presented
|
| | | $ | 330,871 | | |
| | | | ||||
Intangible lease assets
|
| | | $ | 1,883,826 | | |
Less: Accumulated amortization
|
| | | | (951,994) | | |
Lease intangible assets, net, as presented
|
| | | $ | 931,832 | | |
| | | | ||||
Deferred rent and other liabilities
|
| | | $ | 62,944 | | |
Operating lease liabilities
|
| | | | 202,024 | | |
Other liabilities, as presented
|
| | | $ | 264,968 | | |
| | | | ||||
Preferred stock
|
| | | $ | 149 | | |
Additional paid-in capital
|
| | | | 371,632 | | |
Preferred stock and paid-in capital, as presented
|
| | | $ | 371,781 | | |
| | | | ||||
Common stock
|
| | | $ | 2,291 | | |
Additional paid-in capital
|
| | | | 13,350,661 | | |
Less: Additional paid-in capital related to preferred stock
|
| | | | (371,632) | | |
Common stock and paid-in capital, as presented
|
| | | $ | 12,981,320 | | |
| | | | |
For the year ended
December 31, 2020 |
| |||||||
Fees from managed partnerships
|
| | | $ | 500 | | | | | $ | 3,081 | | |
Other income, net
|
| | | | 3,666 | | | | | | 6,610 | | |
Other, as presented
|
| | | $ | 4,166 | | | | | $ | 9,691 | | |
| | | | |
For the year ended
December 31, 2020 |
| |||||||
Acquisition-related
|
| | | $ | 1,354 | | | | | $ | 4,790 | | |
Litigation and non-routine costs, net
|
| | | | 68 | | | | | | 2,348 | | |
General and administrative
|
| | | | 14,526 | | | | | | 61,349 | | |
General and administrative, as presented
|
| | | $ | 15,948 | | | | | $ | 68,487 | | |
| | |
Amount
|
| |||
Estimated shares of VEREIT common stock and VEREIT OP common units to be exchanged(a)
|
| | | | 229,281,987 | | |
Exchange Ratio
|
| | | | 0.705 | | |
Estimated shares of Realty Income common stock to be issued
|
| | | | 161,643,801 | | |
Closing price of Realty Income common stock on June 22, 2021(b)
|
| | | $ | 67.48 | | |
Estimated fair value of Realty Income common stock to be issued to former holders of VEREIT common stock and VEREIT OP common units(b)
|
| | | $ | 10,907,724 | | |
Redemption of VEREIT Series F Preferred Stock and VEREIT OP Series F Preferred OP Units(c)
|
| | | | 374,066 | | |
Estimated fair value of VEREIT’s equity-based compensation awards attributable
to pre-combination services(d) |
| | | | 32,889 | | |
Consideration to be transferred
|
| | | $ | 11,314,679 | | |
Preliminary fair value of VEREIT mortgages payable and notes payable assumed
by Realty Income |
| | | | 6,021,649 | | |
Total estimated preliminary purchase price
|
| | | $ | 17,336,328 | | |
| | |
Amount
|
| |||
Total estimated preliminary purchase price
|
| | | $ | 17,336,328 | | |
Assets: | | | | | | | |
Real estate held for investment
|
| | | $ | 14,017,258 | | |
Real estate and lease intangibles held for sale
|
| | | | 11,300 | | |
Lease intangible assets
|
| | | | 2,710,838 | | |
Cash and cash equivalents
|
| | | | 318,561 | | |
Accounts receivable
|
| | | | 52,000 | | |
Other assets
|
| | | | 347,181 | | |
Total assets acquired
|
| | | $ | 17,457,138 | | |
| | |
Amount
|
| |||
Liabilities: | | | | | | | |
Distributions payable
|
| | | $ | 105,948 | | |
Accounts payable and accrued expenses(a)
|
| | | | 163,280 | | |
Lease intangible liabilities
|
| | | | 499,701 | | |
Other liabilities
|
| | | | 264,968 | | |
Mortgages payable
|
| | | | 1,096,403 | | |
Notes payable
|
| | | | 4,925,246 | | |
Total liabilities assumed
|
| | | $ | 7,055,546 | | |
Estimated preliminary fair value of net assets acquired
|
| | | $ | 10,401,592 | | |
Add: Estimated preliminary fair value of noncontrolling interests acquired
|
| | | | 1,171 | | |
Goodwill
|
| | | $ | 914,258 | | |
|
| | |
Estimated
fair value |
| |
Less: Elimination
of historical carrying value |
| |
Total pro forma
adjustment |
| |||||||||
Land
|
| | | $ | 3,292,005 | | | | | $ | (2,698,232) | | | | | $ | 593,773 | | |
Buildings and improvements
|
| | | | 10,725,253 | | | | | | (9,941,903) | | | | | | 783,350 | | |
| | |
Amount
|
| |||
Preliminary allocation of fair value: | | | | | | | |
In-place leases
|
| | | $ | 2,063,904 | | |
Leasing commissions and marketing costs
|
| | | | 290,457 | | |
Above-market lease assets
|
| | | | 356,477 | | |
Less: Elimination of historical carrying value of lease intangible assets, net
|
| | | | (931,832) | | |
Total pro forma adjustment
|
| | | $ | 1,779,006 | | |
| | |
Mortgages
payable |
| |
Notes
payable |
| ||||||
Estimated fair value
|
| | | $ | 1,096,403 | | | | | $ | 4,925,246 | | |
Less: Elimination of historical carrying value, including unamortized
deferred financing costs and net discounts |
| | | | (1,035,328) | | | | | | (4,586,252) | | |
Total pro forma adjustment
|
| | | $ | 61,075 | | | | | $ | 338,994 | | |
| | |
Preferred stock
and paid-in capital |
| |
Common stock
and paid-in capital |
| |
Distributions
in excess of net income |
| |
Accumulated
other comprehensive (loss) income |
| ||||||||||||
Redemption of the VEREIT Series F Preferred Stock(a)
|
| | | $ | (371,781) | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Realty Income common stock(b)
|
| | | | — | | | | | | 10,907,724 | | | | | | — | | | | | | — | | |
Settlement and exchange of VEREIT equity-based awards(c)
|
| | | | — | | | | | | 32,889 | | | | | | — | | | | | | — | | |
Elimination of VEREIT’s historical equity balances
|
| | | | — | | | | | | (12,981,320) | | | | | | 6,610,678 | | | | | | (634) | | |
Realty Income merger related costs(d)
|
| | | | — | | | | | | — | | | | | | (63,206) | | | | | | — | | |
Total pro forma adjustment
|
| | | $ | (371,781) | | | | | $ | (2,040,707) | | | | | $ | 6,547,472 | | | | | $ | (634) | | |
| | |
Elimination of
historical amounts(a) |
| |
Recognition of
post-combination amounts |
| |
Total
pro forma adjustment |
| |||||||||
For the three months ended March 31, 2021 | | | | | | | | | | | | | | | | | | | |
Straight-line rents
|
| | | $ | (4,470) | | | | | $ | 16,737 | | | | | $ | 12,267 | | |
Amortization of above-market and below-market lease intangibles
|
| | | | 1,537 | | | | | | 4,656 | | | | | | 6,193 | | |
Total pro forma adjustment
|
| | | $ | (2,933) | | | | | $ | 21,393 | | | | | $ | 18,460 | | |
For the year ended December 31, 2020 | | | | | | | | | | | | | | | | | | | |
Straight-line rents
|
| | | $ | (23,149) | | | | | $ | 59,908 | | | | | $ | 36,759 | | |
Amortization of above-market and below-market lease intangibles
|
| | | | 2,777 | | | | | | 18,625 | | | | | | 21,402 | | |
Total pro forma adjustment
|
| | | $ | (20,372) | | | | | $ | 78,533 | | | | | $ | 58,161 | | |
| | |
For the three months
ended March 31, 2021 |
| |
For the year ended
December 31, 2020 |
| ||||||
Buildings and improvements
|
| | | $ | 99,405 | | | | | $ | 397,618 | | |
Tenant improvements
|
| | | | 31,095 | | | | | | 124,379 | | |
In-place leases and leasing commissions and marketing costs
|
| | | | 72,167 | | | | | | 288,667 | | |
Less: Elimination of historical depreciation and amortization(a)
|
| | | | (106,878) | | | | | | (435,366) | | |
Total pro forma adjustment
|
| | | $ | 95,789 | | | | | $ | 375,298 | | |
| | |
For the three months
ended March 31, 2021 |
| |
For the year ended
December 31, 2020 |
| ||||||
Elimination of historical deferred financing costs amortization
|
| | | $ | (2,555) | | | | | $ | (15,114) | | |
Elimination of historical amortization of net (discounts)/premiums
|
| | | | (248) | | | | | | 1,650 | | |
Amortization of the fair value adjustment on mortgages and notes payable
|
| | | | (12,388) | | | | | | (49,552) | | |
Total pro forma adjustment
|
| | | $ | (15,191) | | | | | $ | (63,016) | | |
| | |
For the three months
ended March 31, 2021 |
| |
For the year ended
December 31, 2020 |
| ||||||
Numerator | | | | | | | | | | | | | |
Pro forma income from continuing operations available to common stockholders
|
| | | $ | 149,657 | | | | | $ | 211,652 | | |
Denominator | | | | | | | | | | | | | |
Realty Income historical weighted average common shares outstanding
|
| | | | 371,522,607 | | | | | | 345,280,126 | | |
VEREIT common stock and VEREIT OP common units converted into Realty Income common stock (229,281,987 shares and units outstanding, multiplied by the Exchange Ratio of 0.705)
|
| | | | 161,643,801 | | | | | | 161,643,801 | | |
VEREIT DSU Awards converted into Realty Income common
stock (113,868 units, multiplied by the Exchange Ratio of 0.705) |
| | | | 80,277 | | | | | | 80,277 | | |
Pro forma weighted average common shares outstanding –
basic |
| | | | 533,246,685 | | | | | | 507,004,204 | | |
Realty Income historical weighted average dilutive shares
|
| | | | 79,294 | | | | | | 135,132 | | |
Unvested VEREIT equity-based awards exchanged into Realty
Income equity-based awards |
| | | | 501,362 | | | | | | 573,129 | | |
Pro forma weighted average common shares outstanding –
diluted |
| | | | 533,827,341 | | | | | | 507,712,465 | | |
Pro forma income from continuing operations available to common stockholders per common share:
|
| | | | | | | | | | | | |
Basic and diluted
|
| | | $ | 0.28 | | | | | $ | 0.42 | | |
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
Authorized Capital
Stock or Shares of Beneficial Interest |
| |
Realty Income is authorized to issue an aggregate of 810,100,000 shares of capital stock, consisting of (1) 740,200,000 shares of common stock, par value $0.01 per share; and (2) 69,900,000 shares of preferred stock, par value $0.01 per share.
|
| |
VEREIT is authorized to issue an aggregate of 1,610,000,000 shares of capital stock, consisting of (1) 1,500,000,000 shares of common stock, par value $0.01 per share; (2) 10,000,000 shares of manager’s stock, par value $0.01 per share; and (3) 100,000,000 shares of preferred stock, par value $0.01 per share.
|
|
| | |
As of June 25, 2021, there were issued and outstanding 379,807,775 shares of Realty Income common stock. There are no shares of Realty Income preferred stock outstanding.
Preferred Stock. The Realty Income board of directors is authorized to cause Realty Income to issue preferred stock from time-to-time in such class or series and with such preferences, conversion or other rights, voting powers, restrictions, limitations as to transferability, dividends or other distributions, qualifications or other provisions as may be fixed by the Realty Income board of directors.
|
| |
As of June 25, 2021, there were issued and outstanding 229,149,616 shares of VEREIT common stock and 14,871,246 shares of VEREIT Series F Preferred Stock. There are no shares of VEREIT manager’s stock outstanding.
Preferred Stock. The VEREIT board of directors is authorized to cause VEREIT to issue or classify or reclassify any unissued shares of preferred stock from time-to-time in such classes or series and with such preferences, conversion or other rights, voting powers, restrictions, limitations as to dividend rights, qualifications, liquidation preferences or other terms or conditions of redemption of such shares as may be fixed by the VEREIT board of directors.
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
Voting Rights
|
| |
Each outstanding share of Realty Income common stock is entitled to one vote per share on all matters upon which common stockholders are entitled to vote.
If a quorum exists, action on a matter is approved if the votes cast favoring the action exceed the votes cast opposing the action, except for (i) votes pertaining to Realty Income qualifying or continuing to qualify as a REIT, which requires the affirmative vote of the holders of at least two-thirds of all votes entitled to be cast on the matter, and (ii) a dissolution, share exchange, merger, consolidation or sale of substantially all of Realty Income’s assets, or amendment to the Realty Income Articles, which requires the affirmative vote of the holders of at least a majority of all votes entitled to be cast on the matter. See “Vote on Mergers, Consolidations or Sales of Substantially All Assets” and “Charter Amendments.”
|
| |
Each outstanding share of VEREIT common stock is entitled to one vote per share on all matters upon which stockholders are entitled to vote.
Each outstanding share of VEREIT Series F Preferred Stock is entitled to one vote per share on certain limited matters, unless the shares have been redeemed or called for redemption, including the election of two directors whenever dividends on any shares of VEREIT Series F Preferred Stock shall be in arrears for 18 or more dividend periods; the issuance, increase in or reclassification of any class or series of VEREIT capital stock ranking senior to the VEREIT Series F Preferred Stock; an amendment of the VEREIT Articles that materially and adversely affects the VEREIT Series F Preferred Stock; or a consolidation or merger, or a share exchange that affects the VEREIT Series F Preferred Stock, unless each share of VEREIT Series F Preferred Stock then outstanding remains outstanding without a material adverse change to its terms or is converted into preferred stock of the surviving entity having terms substantially identical to those of the VEREIT Series F
Preferred Stock.
Generally, if a quorum exists and except as otherwise required by statute or the VEREIT Articles, action on a matter is approved if the votes cast favoring the action exceed the votes cast opposing the action, except for (i) a dissolution, share exchange, merger, consolidation, conversion or sale of all or substantially all of VEREIT’s assets or an amendment to the VEREIT Articles (except as set forth in clause (iii) below) or the VEREIT Bylaws (except for those amendments described in “Bylaws Amendments” below requiring only amajority of votes cast), which require the affirmative vote of the stockholders entitled to cast at least a majority of all votes entitled to be cast on the matter; (ii) removal of a director with or without cause, which requires the affirmative
vote of stockholders entitled
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | | | | |
to cast two-thirds of the total votes entitled to be cast in the election of directors; (iii) amendments to the provisions of the VEREIT Articles relating to the removal of VEREIT directors and the vote required for certain amendments, which require the affirmative vote of the holders of at least two-thirds of all the votes entitled to be cast on the matter; and (iv) unless the shares of VEREIT Series F Preferred Stock have been redeemed or called for redemption, certain matters relating to the VEREIT Series F Preferred Stock, as described above, which require the affirmative vote of the holders of at least two-thirds of the outstanding shares of the VEREIT Series F Preferred Stock. See “Vote on Mergers, Consolidations or Sales of Substantially All Assets” and “Charter Amendments.”
|
|
Cumulative Voting
|
| |
Realty Income does not permit cumulative voting with respect to the election of its directors.
|
| |
VEREIT does not permit cumulative voting with respect to the election of its directors.
|
|
Size of the Board of
Directors |
| |
At any regular meeting or at any special meeting called for that purpose, a majority of Realty Income’s entire board of directors may establish, increase or decrease the number of directors; provided that the number thereof shall not be less than the minimum number required by the Maryland General Corporation Law. Directors are elected at each annual meeting of stockholders and each director holds office until the next annual meeting of stockholders and until his or her successor is elected and qualified or until his or her death, retirement, resignation or removal.
As of June 25, 2021, the Realty Income board of directors consists of ten directors. Upon closing of the Merger, the Realty Income board of directors is expected to consist of twelve directors.
|
| |
Solely by resolution, a majority of VEREIT’s entire board of directors may establish, increase or decrease the number of directors; provided that the number thereof shall not be less than the minimum number required by the Maryland General Corporation Law nor more than 15. Each director is elected at each annual meeting of stockholders and holds office until the next annual meeting of stockholders and until his or her successor is elected and qualified or until his or her death, resignation or removal.
As of June 25, 2021, the VEREIT board of directors consists of nine directors.
|
|
Classified Board / Term
of Directors |
| |
The Realty Income board of directors is not classified. The directors of Realty Income hold office until the next annual meeting of stockholders and until their successors are elected and qualified.
|
| |
The VEREIT board of directors is not classified. The directors of VEREIT hold office for a term of one year until the next annual meeting of VEREIT stockholders and serve until their successors are elected and qualified.
|
|
Removal of Directors
|
| |
The MGCL provides that stockholders may remove directors with or without
|
| |
The MGCL provides that stockholders may remove directors with or without
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | |
cause unless the Realty Income Articles provide that directors may be removed only for cause. However, if a director is elected by a particular voting group, that director may only be removed by the requisite vote of that voting group.
The Realty Income Articles provide that subject to the rights of one or more classes or series of Realty Income preferred stock to elect or remove one or more directors, any Realty Income director, or Realty Income’s entire board of directors, may be removed only with cause by the affirmative vote of holders of at least a majority of all shares of capital stock entitled to vote on the election of directors voting together as a single class.
“Cause” shall mean with respect to any particular director a final judgment of a court of competent jurisdiction holding that such director caused demonstrable, material harm to Realty Income through bad faith or active and deliberate dishonesty.
|
| |
cause unless the VEREIT Articles provide that directors may be removed only for cause. However, if a director is elected by a particular voting group, that director may only be removed by the requisite vote of that voting group.
The VEREIT Articles provide that, subject to the rights of one or more classes or series of VEREIT preferred stock to elect or remove one or more directors, any VEREIT director may be removed with or without cause by the affirmative vote of holders of at least two-thirds of all shares entitled to vote on the election of directors.
|
|
Election of Directors
|
| |
Directors are elected at the annual meeting of stockholders by the affirmative vote of a majority of the votes cast with respect to such director nominee; provided, however, that if the Realty Income board of directors determines that the number of nominees exceeds the number of directors to be elected at such meeting, each of the directors shall be elected by the affirmative vote of a plurality of the votes cast.
|
| |
Directors are elected at the annual meeting of stockholders by the affirmative vote of a majority of the votes cast with respect to such director nominee; provided, however, that each of the directors shall be elected by the affirmative vote of a plurality of the votes cast if (i) the secretary receives notice that a stockholder has validly nominated a person for election to the board of directors and (ii) the nomination has not been withdrawn on or before the 10th day before VEREIT first mails its notice for such meeting.
|
|
Filling Vacancies of
Directors |
| |
Any vacancies on the Realty Income board of directors for any cause other than an increase in the number of directors may be filled by a majority of the remaining directors, even if the remaining directors do not constitute a quorum. Vacancies created through an increase in the number of directors may be filled by the affirmative vote of the entire board of directors.
|
| |
Any vacancies on the VEREIT board of directors for any cause, including an increase in the number of directors, may be filled by a majority of the remaining directors, even if the remaining directors do not constitute a quorum.
|
|
Charter Amendments
|
| |
The MGCL provides that, if the amendment is declared advisable by the Board of Directors, the affirmative vote
|
| |
The MGCL provides that, if the amendment is declared advisable by the Board of Directors, the affirmative vote
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | |
of two-thirds of all outstanding stock entitled to vote is required to amend the charter of a Maryland corporation. However, the MGCL permits a corporation to reduce the voting requirement in its charter to allow for the approval of an amendment to the charter by the affirmative vote of no less than a majority of the shares outstanding and entitled to vote on the matter.
The Realty Income Articles provide that an amendment to the Realty Income Articles declared advisable by the Board of Directors may be approved by the affirmative vote of a majority of the shares outstanding and entitled to vote on the matter.
|
| |
of two-thirds of all outstanding stock entitled to vote is required to amend the charter of a Maryland corporation. However, the MGCL permits a corporation to reduce the voting requirement in its charter to allow for the approval of an amendment to the charter by the affirmative vote of no less than a majority of the shares outstanding and entitled to vote on the matter.
The VEREIT Articles provide that VEREIT reserves the right to make any amendment now or hereafter authorized by law, including any amendment altering the terms or contract rights, as expressly set forth in the VEREIT Articles, of any shares of outstanding stock. In addition, any amendments to the provisions relating to the amendment of the VEREIT Articles and the removal of directors may only be made if declared advisable by the VEREIT board of directors and approved by the affirmative vote of two-thirds of all votes entitled to be cast. VEREIT may, with the approval of a majority of the VEREIT board of directors and without any action by the stockholders, amend the VEREIT Articles to increase or decrease the aggregate number of authorized shares or the number of authorized shares of any class or series that VEREIT has authority to issue.
|
|
Bylaw Amendments
|
| |
The Realty Income board of directors has the power to adopt, amend or repeal the Realty Income Bylaws, provided, however, the provisions related to (i) the written statement Realty Income is required to furnish to stockholders, (ii) investment policy and restrictions, (iii) the annual report and (iv) the definitions in Article I of the Realty Income Bylaws to the extent used in the provision related to amendments to the Realty Income Bylaws, may not be amended, repealed or modified, or inconsistent provisions adopted with respect thereto, without the affirmative vote of stockholders entitled
to cast a majority of the votes entitled to be cast on the matter. In addition, pursuant to a binding proposal that is properly submitted by stockholders for
|
| |
The VEREIT board of directors shall have the power to alter, amend or repeal the VEREIT Bylaws, provided, however, the provisions related to (i) the Maryland Control Share Acquisition Act, (ii) the Maryland Business Combination Act, and (iii) limitations on the power of the VEREIT board of directors to amend the VEREIT Bylaws may not be altered, amended or repealed, without the affirmative vote of the majority of the votes cast by the VEREIT common stockholders. To the extent permitted by law, VEREIT stockholders may also amend the VEREIT Bylaws by the affirmative vote of a majority of all the
votes entitled to be cast on the matter pursuant to a binding proposal submitted by a stockholder that (i) owned shares of
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | |
approval at a duly called annual meeting or special meeting of stockholders, the stockholders shall have the power, by the affirmative vote of a majority of all votes entitled to be cast on the matter, to alter or repeal any provision of the Realty Income Bylaws and to adopt new provisions of the Realty Income Bylaws, in any such case to the extent permitted by and consistent with the Realty Income Articles, Realty Income Bylaws and applicable law.
|
| |
VEREIT common stock in the amount and for the duration of time specified in Rule 14a-8 under the Exchange Act on the date the bylaw proposal is delivered or mailed to and received by the secretary in accordance with the VEREIT Bylaws and (ii) continuously owns such shares through the date of the annual or special meeting of stockholders where such proposal will be considered.
|
|
Vote on Merger,
Consolidations or Sales of Substantially All Assets |
| |
The MGCL provides that a dissolution, merger, consolidation, conversion, share exchange or sale of all or substantially all of a corporation’s assets must be declared advisable by the Board of Directors and approved by the stockholders of a corporation by the affirmative vote of two-thirds of all the votes entitled to be cast on the matter. However, the MGCL permits a corporation in its charter to reduce the voting requirement to allow for the approval of a dissolution, merger, consolidation, conversion, share exchange or sale of all or substantially all of the corporation’s assets by the affirmative vote of no less than a majority of the votes entitled to be cast on the matter.
Notwithstanding any provision of law permitting or requiring any action to be taken or authorized by the affirmative vote of the holders of a greater number of votes, the Realty Income Articles provide that any action shall be effective and valid if taken or authorized by the affirmative vote of a majority of all the votes entitled to be cast on the matter.
|
| |
The MGCL provides that a dissolution, merger, consolidation, conversion, share exchange or sale of all or substantially all of a corporation’s assets must be declared advisable by the Board of Directors and approved by the stockholders of a corporation by the affirmative vote of two-thirds of all the votes entitled to be cast on the matter. However, the MGCL permits a corporation in its charter to reduce the voting requirement to allow for the approval of a dissolution, merger, consolidation, conversion, share exchange or sale of all or substantially all of the corporation’s assets by the affirmative vote of no less than a majority of the votes entitled to be cast on the matter.
Notwithstanding any provision of law permitting or requiring any action to be taken or authorized by the affirmative vote of the holders of a greater number of votes and except for certain amendments of the VEREIT Articles relating to the removal of VEREIT directors and the vote required for certain amendments, the VEREIT Articles provide that any action shall be effective and valid if declared advisable by the VEREIT board of directors and taken or authorized by the affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter.
|
|
Ownership Limitations
|
| |
With certain exceptions, the actual, constructive or beneficial ownership by any person of more than 9.8% (by value or by number of shares, whichever is more restrictive) of the outstanding shares of Realty Income common stock
|
| |
With certain exceptions, the constructive or beneficial ownership by any person of more than 9.8% in value of the aggregate of VEREIT’s outstanding shares of stock or more than 9.8% (by value or by number of shares, whichever is more
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | | is generally prohibited. | | |
restrictive) of the outstanding shares of VEREIT common stock is generally prohibited.
|
|
| | |
The Realty Income board of directors, in its sole discretion, may exempt a person from the limitation on a person beneficially owning shares of common stock in excess of the ownership limitation if the board obtains such representation and undertakings from such person as are reasonably necessary to ascertain that no individual’s beneficial ownership of such shares of common stock will violate the ownership limitation or that such violation will not cause Realty Income to fail to qualify as a REIT under the Code, and agrees that any violation of such representations or undertakings or attempted violation will result in such common stock being transferred into a trust in accordance with the Realty Income Articles.
The Realty Income board of directors, in its sole discretion, may exempt a person from the limitation on a person constructively owning shares of common stock in excess of the ownership limitation if such person does not and represents that it will not own, actually or constructively, an interest in a tenant of Realty Income that would cause Realty Income to own, actually or constructively, more than a 9.8% interest in such tenant and Realty Income obtains such representations and undertakings from such person as are reasonably necessary to ascertain this fact and agrees that any violation or attempted violation will result in such shares of common stock being transferred to a trust in accordance with the Realty Income Articles. Notwithstanding the foregoing, the inability of a person to make the described certification shall not prevent the Realty Income board of directors, in its sole discretion, from exempting such person from the limitation on a
person constructively owning shares of common stock in excess of the ownership limit if the Realty Income board of directors determines that the resulting application of Section 856(d)(2)(B) of the Code
|
| |
The VEREIT board of directors, in its sole discretion, may (prospectively or retroactively) exempt a person from the limitation of a person beneficially or constructively owning shares in excess of the ownership limitation if (i) the board obtains such representation and undertakings from such person as are reasonably necessary to ascertain that no individual’s beneficial or constructive ownership of such shares would result in VEREIT being “closely held” under the Code or otherwise failing to qualify as a REIT under the Code, (ii) if such person does not and represents that it will not own, actually or constructively, an interest in a tenant of VEREIT that would cause VEREIT to own, actually or constructively, more than a 9.8% interest in such tenant and VEREIT obtains such representations and undertakings from such person as are reasonably necessary to ascertain this fact and (iii) agrees that any violation or attempted violation will result
in such shares being transferred to a trust in accordance with the VEREIT Articles. For purposes of the foregoing sentence, a tenant from whom VEREIT derives and is expected to continue to derive a sufficiently small amount of revenue such that, in the opinion of the VEREIT board of directors, rent from such tenant would not adversely affect VEREIT’s ability to qualify as a REIT will not be treated as a tenant of VEREIT.
Prior to granting any exception to the ownership limitations, the VEREIT board of directors may require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the VEREIT board of directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure VEREIT’s status as a REIT.
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | |
would affect the characterization of less than 0.5% of the gross income of Realty Income in any taxable year, after taking into account the effect of this sentence with respect to all other shares of common stock to which this sentence applies.
Prior to granting any exception to the ownership limitations, the Realty Income board of directors may require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Realty Income board of directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure Realty Income’s status as a REIT.
|
| | | |
Special Meetings of the
Stockholders |
| |
A special meeting of Realty Income stockholders may be called at any time by the Realty Income board of directors, the chairman of the board, the president or the chief executive officer and must be called by the secretary to act on any matter that may properly be considered at a meeting of stockholders upon the written request of stockholders entitled to cast at least a majority of the votes entitled to be cast on such matter at such meeting.
|
| |
A special meeting of VEREIT’s stockholders may be called by the VEREIT board of directors, the chairman of the board, the president, or the chief executive officer and must be called by the secretary to act on any matter that may properly be considered at a meeting of stockholders upon the written request of stockholders entitled to cast at least a majority of the votes entitled to be cast on such matter at such meeting.
|
|
|
Business transacted at the special meeting of stockholders will be limited to the purposes stated in the notice.
|
| |
Business transacted at the special meeting of stockholders will be limited to the purposes stated in the notice.
|
| ||
Advance Notice
Provisions for Stockholder Nominations and Stockholder Business Proposals |
| |
The Realty Income Bylaws provide that, with respect to an annual meeting of stockholders, nominations of individuals for election to the Realty Income board of directors and the proposal of business to be considered by stockholders at the annual meeting may be made only:
•
pursuant to Realty Income’s notice of meeting;
•
by or at the direction of the Realty Income board of directors; or
•
upon timely and proper notice by a stockholder who is a stockholder of record as of the record date set by the Realty Income board of directors for determining stockholders entitled to vote at the meeting, at the time of giving of notice and at the time of the meeting
|
| |
The VEREIT Bylaws provide that, with respect to an annual meeting of stockholders, nominations of individuals for election to the VEREIT board of directors and the proposal of business to be considered by stockholders at the annual meeting may be made only:
•
pursuant to VEREIT’s notice of meeting;
•
by or at the direction of the VEREIT board of directors; or
•
upon timely and proper notice by a stockholder who is a stockholder of record at the time of giving of notice and at the time of the meeting and who is entitled to vote at the meeting.
In general, notice of stockholder
|
|
| | |
Rights of Realty Income Stockholders
|
| |
Rights of VEREIT Stockholders
|
|
| | |
and who is entitled to vote at the meeting in the election of each individual so nominated or on any such other business.
In general, notice of stockholder nominations or business for an annual meeting must be delivered not earlier than the 150th day nor later than 5:00 p.m., Pacific Time, on the 120th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting, unless the annual meeting is advanced or delayed more than 30 days from the anniversary date of the preceding year’s annual proxy meeting, in which case notice must be delivered not earlier than the 150th day nor later than 5:00 p.m., Pacific Time, on the later date of the 120th day prior to the date of such annual meeting or the 10th day following the day on which public announcement of the date of the meeting is first made. Notice of stockholder nominations for a special meeting must be delivered not earlier than the 120th day prior to the special meeting, and not later than 5:00 p.m., Pacific Time, on the later of the 90th day prior to the meeting or the 10th
day following the day on which the public announcement is first made of the date of the meeting and the nominees proposed by the Realty Income board of directors.
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nominations or business for an annual meeting must be delivered not earlier than 5:00 p.m., Eastern Time, on the 150th day nor later than 5:00 p.m., Eastern Time, on the 120th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting, unless the annual meeting is advanced or delayed more than 30 days from the anniversary date of the preceding year’s annual meeting, in which case notice must be delivered not earlier than 5:00 p.m., Eastern Time, on the 150th day nor later than 5:00 p.m., Eastern Time, on the 120th day prior to the date of such annual meeting or the 10th day following the day on which public announcement of the date of the meeting is first made. Notice of stockholder nominations for a special meeting must be delivered not earlier than the 120th day prior to the special meeting, and not later than 5:00 p.m., Eastern Time, on the later of the 90th day prior to the special meeting or the
10th day following the day on which the public announcement is first made of the date of the special meeting and the nominees proposed by the VEREIT board of directors.
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Notice of Stockholder
Meetings |
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Not less than 10 days nor more than 90 days before each meeting of stockholders, a written notice shall be mailed or electronic transmission shall be delivered to each stockholder entitled to vote at or to notice of such meeting at the address as it appears on the records of Realty Income, if written notice is sent, or to the address or number of the stockholder at which the stockholder receives electronic transmission unless such stockholder waives notice before or after the meeting.
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Not less than 10 days nor more than 90 days before each meeting of stockholders, a written notice shall be mailed or electronic transmission shall be delivered to each stockholder entitled to vote at or to notice of such meeting at the address as it appears on the records of VEREIT, if written notice is sent, or to the address or number of the stockholder at which the stockholder receives electronic transmission unless such stockholder waives notice before or after the meeting.
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State Anti-Takeover
Statutes |
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Under the MGCL, certain “business combinations” (which include a merger, consolidation, share exchange and certain transfers, issuances or reclassifications of equity securities)
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Under the MGCL, certain “business combinations” (which include a merger, consolidation, share exchange and certain transfers, issuances or reclassifications of equity securities)
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Rights of Realty Income Stockholders
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Rights of VEREIT Stockholders
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between a Maryland corporation and any person who beneficially owns , directly or indirectly, 10% or more of the voting power of the corporation’s outstanding voting stock, or an affiliate or associate of the corporation who beneficially owned, directly or indirectly, 10% or more of the voting power of the corporation’s then outstanding stock at any time within the preceding two years, in each case referred to as an “interested stockholder,” or an affiliate thereof, are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. Thereafter, any such business combination must be recommended by the board of directors and approved by the affirmative vote of at least (i) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation and (ii) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares
held by the interested stockholder or its affiliates or associates. The super-majority vote requirements do not apply, however, to business combinations that are approved or exempted by the board of directors prior to the time that the interested stockholder becomes an interested stockholder or if the business combination satisfies certain minimum price, form of consideration and procedural requirements. To date, Realty Income has not opted out of the business combination provisions of the MGCL.
As permitted by the MGCL, the Realty Income Bylaws contain a provision exempting from the control share acquisition statute all shares of Realty Income capital stock to the fullest extent permitted by the MGCL. See “Maryland Control Share Acquisition Statute.”
Subtitle 8 of Title 3 of the MGCL permits a Maryland corporation with a class of equity securities registered under the Exchange Act and at least three independent directors to elect to be subject, by provision in its charter or bylaws or a resolution of its board of
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between a Maryland corporation and any person who beneficially owns, directly or indirectly, 10% or more of the voting power of the corporation’s outstanding voting stock, or an affiliate or associate of the corporation who beneficially owned, directly or indirectly, 10% or more of the voting power of the corporation’s then outstanding stock at any time within the preceding two years, in each case referred to as an “interested stockholder,” or an affiliate thereof, are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. Thereafter, any such business combination must be recommended by the board of directors and approved by the affirmative vote of at least (i) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation and (ii) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares
held by the interested stockholder or its affiliates or associates. The super-majority vote requirements do not apply, however, to business combinations that are approved or exempted by the board of directors prior to the time that the interested stockholder becomes an interested stockholder or if the business combination satisfies certain minimum price, form of consideration and procedural requirements. To date, VEREIT has opted out of the business combination provisions of the MGCL and the VEREIT board of directors may not amend, alter or repeal the resolution opting out of the business combination provision or adopt any resolution inconsistent there with without the affirmative vote of the majority of the votes cast by the VEREIT common stockholders.
As permitted by the MGCL, the VEREIT Bylaws contain a provision exempting from the control share acquisition statute any and all acquisitions of any shares of VEREIT capital stock to the fullest extent permitted by the MGCL. See “Maryland
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Rights of Realty Income Stockholders
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Rights of VEREIT Stockholders
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directors and notwithstanding any contrary provision in the charter or bylaws, to any or all of the following five provisions:
•
a classified board;
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a two-thirds stockholder vote requirement for removing a director;
•
a requirement that the number of directors be fixed only by vote of the directors;
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a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the class of directors in which the vacancy occurred; and
•
a requirement that requires the request of stockholders entitled to cast at least a majority of all votes entitled to be cast to call a special meeting of stockholders.
To date, Realty Income has not made any of the elections described above, although, independent of these elections, the Realty Income Articles and Realty Income Bylaws provide that Realty Income directors may only be removed for cause (defined in the Realty Income Articles) and with the vote of a majority of the votes entitled to be cast, and require the request from stockholders holding a majority of the votes entitled to be cast in order to call a special meeting of stockholders.
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Control Share Acquisition Statute.”
Subtitle 8 of Title 3 of the MGCL permits a Maryland corporation with a class of equity securities registered under the Exchange Act and at least three independent directors to elect to be subject, by provision in its charter or bylaws or a resolution of its board of directors and notwithstanding any contrary provision in the charter or bylaws, to any or all of the following five provisions:
•
a classified board;
•
a two-thirds stockholder vote requirement for removing a director;
•
a requirement that the number of directors be fixed only by vote of the directors;
•
a requirement that a vacancy on the board be filled only by the remaining directors and for the remainder of the full term of the class of directors in which the vacancy occurred; and
•
a requirement that requires the request of stockholders entitled to cast at least a majority of all votes entitled to be cast to call a special meeting of stockholders.
To date, VEREIT has not made any of the elections described above, although, independent of these elections, the VEREIT Articles and VEREIT Bylaws contain provisions requiring the affirmative vote of stockholders entitled to cast at least two-thirds of the votes entitled to be cast generally in the election of directors in order to remove a director and the written request of stockholders entitled to cast a majority of all the votes entitled to be cast on any matter that may properly be considered at a meeting of stockholders in order to call a special meeting to act on such matter.
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Liability and
Indemnification of Officers and Directors |
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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
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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
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Rights of Realty Income Stockholders
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Rights of VEREIT Stockholders
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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 Realty Income Articles contain such a provision that eliminates such liability to the maximum extent permitted by the MGCL.
The MGCL requires a corporation (unless its charter provides otherwise, which Realty Income’s Articles do 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:
•
the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty;
•
the director or officer actually received an improper personal benefit in money, property or services; or
•
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 a director or officer for an adverse judgment in a suit by or in the right of the corporation or if the director or officer was adjudged liable on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses.
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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 VEREIT Articles contain such a provision that eliminates such liability to the maximum extent permitted by the MGCL.
The MGCL requires a corporation (unless its charter provides otherwise, which VEREIT’s Articles do 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:
•
the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty;
•
the director or officer actually received an improper personal benefit in money, property or services; or
•
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 a director or officer for an adverse judgment in a suit by or in the right of the corporation or if the director or officer was adjudged liable on the basis that a personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses.
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Rights of Realty Income Stockholders
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Rights of VEREIT Stockholders
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In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of 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 a written undertaking by the director or on the director’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director did not meet the standard of conduct.
To the maximum extent permitted by Maryland law in effect from time to time, the Realty Income Articles authorize Realty Income, and the Realty Income Bylaws obligate Realty Income to, indemnify directors and officers as follows:
•
Realty Income shall indemnify any individual who is a present or former director or officer of Realty Income and who is made or threatened to be made a party to, or a witness in, a proceeding by reason of his or her service in that capacity; and
•
Realty Income shall indemnify any individual who, while a director of Realty Income and at the request of Realty Income, serves or has served as a director, officer, partner or trustee of another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her status as a present or former director or officer of Realty Income.
The Realty Income Bylaws further provide that Realty Income shall indemnify any individual who at its request and while an officer of Realty Income serves or has served in any of the above listed capacities, or while an officer or director, as member or manager of any such entities, or in any such capacity or as a member or manager of a real estate
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In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of 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 a written undertaking by the director or on the director’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director did not meet the standard of conduct.
To the maximum extent permitted by Maryland law in effect from time to time, the VEREIT Articles obligate VEREIT to provide any indemnification permitted by the laws of Maryland and shall indemnify directors and officers as follows:
•
VEREIT shall indemnify any individual who is a present or former director or officer of VEREIT who is made or threatened to be made a party to a proceeding by reason of his or her service in that capacity; and
•
VEREIT shall indemnify any individual who, while a director or officer of VEREIT and at the request of VEREIT, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to a proceeding by reason of his or her service in that capacity.
VEREIT may, with approval of the VEREIT board of directors, indemnify other employees and agents of VEREIT or its predecessor.
VEREIT has also entered into indemnification agreements with certain of its directors and officers, which are intended to provide indemnification to the maximum extent permitted by the MGCL.
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Rights of Realty Income Stockholders
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Rights of VEREIT Stockholders
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investment trust or limited liability company. The Bylaws further provide that Realty Income may, with the approval of the Realty Income Board, provide similar indemnification to any employee or agent of Realty Income or a predecessor.
Realty Income has also entered into indemnification agreements with certain of its directors and officers, which are intended to provide indemnification to the maximum extent permitted by the MGCL.
Realty Income has purchased directors’ and officers’ liability insurance for the benefit of its directors and officers.
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VEREIT has purchased directors’ and officers’ liability insurance for the benefit of its directors and officers.
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Stockholder Rights
Plan |
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Realty Income does not have a stockholder rights plan in effect.
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VEREIT does not have a stockholder rights plan in effect.
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Dissenters’ Rights
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The MGCL provides that a stockholder of a corporation is generally entitled to receive payment of the fair value of its stock if the stockholder dissents from certain transactions including a proposed merger, share exchange or a sale of substantially all of the assets of the corporation, or unless the charter reserves the right to do so, any amendment authorized by law to the terms of outstanding stock.
However, dissenters’ rights generally are not available to holders of shares, such as shares of Realty Income common stock, that are registered on a national securities exchange or quoted on a national market security system nor are dissenters rights available if a provision is included in the charter providing that the stockholders are not entitled to such rights.
The Realty Income Articles do not include such charter provisions, but do reserve the right to make any amendment to the Realty Income Articles, now or hereafter authorized by law, including any amendment altering the terms or contract rights, as expressly set forth in the Realty Income Articles, of any shares of outstanding stock.
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The MGCL provides that a stockholder of a corporation is generally entitled to receive payment of the fair value of its stock if the stockholder dissents from certain transactions including a proposed merger, share exchange or a sale of substantially all of the assets of the corporation, or unless the charter reserves the right to do so, any amendment authorized by law to the terms of outstanding stock.
However, dissenters’ rights generally are not available to holders of shares, such as shares of VEREIT common stock and VEREIT Series F Preferred Stock, that are registered on a national securities exchange or quoted on a national market security system nor are dissenters rights available if a provision is included in the charter providing that the stockholders are not entitled to such rights.
The VEREIT Articles provide that stockholders are not entitled to appraisal or dissenters’ rights unless a majority of the VEREIT board of directors determines that such rights apply to one or more transactions occurring after the date of such determination. In addition, the VEREIT Articles provide that VEREIT reserves the right to make any amendment thereto, now or hereafter authorized by law, including any amendment altering the terms or contract
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Rights of Realty Income Stockholders
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Rights of VEREIT Stockholders
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rights, as expressly set forth in the VEREIT Articles, of any shares of outstanding stock.
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REIT Qualification
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The Realty Income Articles provide that the Realty Income board of directors may revoke or otherwise terminate Realty Income’s REIT election, with the approval of stockholders entitled to cast at least two-thirds of all votes entitled to be cast on the matter, if it determines that it is no longer in Realty Income’s best interests to continue to qualify as a REIT.
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The VEREIT Articles provide that the VEREIT board of directors may revoke or otherwise terminate VEREIT’s REIT election, without the approval of the stockholders, if it determines that it is no longer in VEREIT’s best interests to continue to qualify as a REIT.
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Exclusive Forum
Provision |
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The Realty Income Articles and the Realty Income Bylaws do not contain a provision adopting an exclusive forum.
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The VEREIT Bylaws provide that, unless VEREIT consents in writing to the selection of an alternative forum, the Circuit Court for Baltimore City, Maryland or, if that Court does not have jurisdiction, another state or federal court sitting in Maryland, will be the sole and exclusive forum for (i) any internal corporate claims (as defined in the MGCL), other than any action arising under federal securities laws, including (a) any derivative action or proceeding brought on behalf of VEREIT, (b) any action asserting a claim for a breach of any duty owed to VEREIT or its stockholders by any director, officer or employee of VEREIT, or (c) any action asserting a claim against VEREIT or any of its directors, officers or employees arising pursuant to any provision of the MGCL, the VEREIT Articles or the VEREIT Bylaws,
or (ii) any other action asserting a claim against VEREIT or any of its directors, officers or employees that is governed by the internal affairs doctrine.
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| | | | | A-5 | | | |
| | | | | A-5 | | | |
| | | | | A-5 | | | |
| | | | | A-6 | | | |
| | | | | A-6 | | | |
| | | | | A-6 | | | |
| | | | | A-6 | | | |
| | | | | A-6 | | | |
| | | | | A-7 | | | |
| | | | | A-8 | | | |
| | | | | A-11 | | | |
| | | | | A-12 | | | |
| | | | | A-13 | | | |
| | | | | A-14 | | | |
| | | | | A-14 | | | |
| | | | | A-14 | | | |
| | | | | A-14 | | | |
| | | | | A-27 | | | |
| | | | | A-39 | | | |
| | | | | A-39 | | | |
| | | | | A-44 | | | |
| | | | | A-46 | | | |
| | | | | A-46 | | | |
| | | | | A-48 | | | |
| | | | | A-48 | | | |
| | | | | A-50 | | | |
| | | | | A-53 | | | |
| | | | | A-53 | | | |
| | | | | A-55 | | | |
| | | | | A-55 | | | |
| | | | | A-56 | | | |
| | | | | A-57 | | | |
| | | | | A-58 | | | |
| | | | | A-58 | | | |
| | | | | A-58 | | | |
| | | | | A-59 | | | |
| | | | | A-62 | | | |
| | | | | A-65 | | | |
| | | | | A-65 | | | |
| | | | | A-65 | | | |
| | | | | A-66 | | |
| | | | | A-66 | | | |
| | | | | A-66 | | | |
| | | | | A-66 | | | |
| | | | | A-67 | | | |
| | | | | A-68 | | | |
| | | | | A-68 | | | |
| | | | | A-70 | | | |
| | | | | A-74 | | | |
| | | | | A-74 | | | |
| | | | | A-74 | | | |
| | | | | A-75 | | | |
| | | | | A-75 | | | |
| | | | | A-75 | | | |
| | | | | A-75 | | | |
| | | | | A-75 | | | |
| | | | | A-76 | | | |
| | | | | A-76 | | | |
| | | | | A-76 | | | |
| | | | | A-76 | | | |
| | | | | A-76 | | | |
| | | | | A-77 | | | |
| | | | | A-77 | | | |
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Exhibit A
Terms of Separation and OfficeCo Distribution
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| Preliminary Matters | | | | |
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OfficeCo
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OfficeCo will be a Maryland corporation that is initially a wholly owned direct or indirect subsidiary of Realty Income, or, subject to the consent of VEREIT (not to be unreasonably withheld, conditioned or delayed), VEREIT.
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Separation
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The “Separation” shall mean the separation of OfficeCo from Realty Income following the transfer to OfficeCo of the OfficeCo Business, in accordance with the terms of this Exhibit A and the Agreement.
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OfficeCo Distribution
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The Separation will be effectuated by a pro rata distribution (the “OfficeCo Distribution”) of all of the outstanding shares of OfficeCo common stock to the stockholders of Realty Income pursuant to the Form 10. Realty Income may elect to retain, cause an Affiliate to retain, or sell to a third party, a class of non-voting stock of OfficeCo.
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| Actions To Be Taken Prior to The Separation and The OfficeCo Distribution | | |||
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OfficeCo Business
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Realty Income, VEREIT and their respective Subsidiaries will cooperate and use reasonable best efforts to transfer, following the consummation of the Merger and prior to the Separation, and in accordance with the Reorganization Plan, the office real properties of Realty Income and VEREIT (and their respective Subsidiaries) and certain other identified assets that are listed on Schedule A of the Realty Income Disclosure Schedule (the “OfficeCo Properties”), as well as the material assets primarily related to those properties and material liabilities to the extent related to those properties (including any OfficeCo Financing, the “OfficeCo Business”),
unless Realty Income, after consultation with and good faith consideration of any comments from VEREIT, elects to exclude any such OfficeCo Properties, assets or liabilities from the OfficeCo Business.
Realty Income, after consultation with and good faith consideration of any comments from VEREIT, may elect to include certain additional properties, assets or liabilities of VEREIT, Realty Income or its Subsidiaries.
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Reorganization Plan
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Realty Income, VEREIT and their respective Subsidiaries will cooperate and Realty Income shall, following consultation with and good faith consideration of any comments from VEREIT, as promptly as practicable, determine a reorganization plan (as may be amended, the “Reorganization Plan”) to effectuate the transfer of the OfficeCo Business to OfficeCo or Subsidiaries thereof.
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Separation Documents
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Realty Income, VEREIT and OfficeCo, and/or, as applicable, their respective Subsidiaries, will enter into a Separation and Distribution Agreement that will govern the rights and responsibilities of each party with respect to its relationship with the other following the Separation, including with respect to the allocation of assets and liabilities, cross-indemnification and other separation matters, in each case, on such terms as determined by Realty Income, after consultation with and good faith consideration of any comments from VEREIT.
In addition, Realty Income, VEREIT and OfficeCo, or their respective Subsidiaries, will enter into other customary agreements to the extent appropriate to address tax matters, employee matters, transition services and other terms of the Separation and the OfficeCo Distribution, in each case, on such terms as determined by Realty Income, after consultation with and good faith consideration of any comments from VEREIT.
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Financing and Capital Structure
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Realty Income and its Subsidiaries will use reasonable best efforts to procure, adequate financing for the capitalization of OfficeCo, as determined by Realty Income, after consultation with and good faith consideration of any comments from VEREIT (the “OfficeCo Debt Financing”), including the transfer to or assumption by OfficeCo or a Subsidiary thereof of mortgages related to OfficeCo Properties to be determined by Realty Income. VEREIT and its Subsidiaries will cooperate with respect to the OfficeCo Debt Financing on such terms as set forth in, and subject to, Section 5.14 of the Merger Agreement (other than with respect to the transfer to or assumption by OfficeCo or a Subsidiary
thereof of mortgages related to OfficeCo Properties, which cooperation shall be on such terms as set forth in, and subject to, Section 5.15 of the Merger Agreement).
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Governance and Management
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OfficeCo’s certificate of incorporation and bylaws will be amended and restated in connection with consummation of the Separation and the OfficeCo Distribution to contain terms and provisions customary for a publicly traded REIT.
Prior to consummation of the Separation and the OfficeCo Distribution, Realty Income will, after consultation with and good faith consideration of any comments from VEREIT, identify and designate (i) individuals to serve on OfficeCo’s board of directors and committees thereof, and (ii) individuals to serve as executive officers of OfficeCo.
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Stock Exchange
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VEREIT and Realty Income and their respective Subsidiaries will use reasonable best efforts to cause the shares of OfficeCo’s common stock to be listed for trading on a nationally recognized U.S. stock exchange, to be selected by Realty Income.
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Form 10
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VEREIT and Realty Income and their respective Subsidiaries will cooperate and use reasonable best efforts to prepare and cause the Form 10 to be filed with and declared effective by the SEC as promptly as practicable.
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Corporate Approvals
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VEREIT and Realty Income and their respective Subsidiaries will cooperate and use reasonable best efforts to procure the requisite corporate and other approvals required to consummate the Separation and the OfficeCo Distribution, including the approval and declaration by the Realty Income board of directors of the OfficeCo Distribution.
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Solvency Opinion
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Realty Income will engage a reputable solvency expert to provide a customary solvency and surplus opinion with respect to Realty Income’s declaration and payment of the OfficeCo Distribution, if deemed necessary by Realty Income.
In furtherance of the foregoing, Realty Income and VEREIT will cooperate to provide such information, projections and analyses as may be required by the solvency expert in order to render such opinion.
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Third Party Consents and Approvals
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VEREIT and Realty Income and their respective Subsidiaries will cooperate and use reasonable best efforts to obtain any Consents required with respect to the Separation and the OfficeCo Distribution in accordance with the Reorganization Plan.
VEREIT and Realty Income will reasonably cooperate and seek to (i) minimize any fees or costs related to obtaining any such Consents, and (ii) cause such Consents, fees or costs to be contingent on and payable after the consummation of the Merger.
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This ‘DEFM14A’ Filing | Date | Other Filings | ||
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1/1/26 | ||||
12/31/23 | ||||
12/31/22 | ||||
8/2/22 | ||||
6/3/22 | ||||
5/4/22 | ||||
4/29/22 | ||||
3/15/22 | ||||
1/29/22 | ||||
1/1/22 | ||||
12/31/21 | ||||
12/16/21 | ||||
12/2/21 | ||||
11/16/21 | ||||
11/2/21 | ||||
8/12/21 | 425, 8-K | |||
8/5/21 | 10-Q, 8-K | |||
7/9/21 | ||||
7/8/21 | ||||
6/30/21 | 10-Q, 4 | |||
Filed on: | 6/29/21 | |||
6/25/21 | 425, 8-K, S-8 | |||
6/24/21 | ||||
6/22/21 | ||||
6/17/21 | ||||
6/16/21 | ||||
6/15/21 | ||||
6/14/21 | ||||
6/13/21 | ||||
6/10/21 | ||||
6/7/21 | 4, 8-K | |||
6/3/21 | 4, 8-K, DEF 14A, PRE 14A | |||
6/2/21 | ||||
5/29/21 | ||||
5/18/21 | ||||
4/30/21 | 425, 8-K | |||
4/29/21 | 425, 8-K, 8-K/A | |||
4/28/21 | 8-K | |||
4/27/21 | ||||
4/26/21 | ||||
4/25/21 | ||||
4/23/21 | ||||
4/20/21 | ||||
4/14/21 | ||||
4/13/21 | ||||
4/9/21 | ||||
4/8/21 | ||||
4/7/21 | ||||
4/6/21 | ||||
4/1/21 | 4 | |||
3/31/21 | 10-Q, 4 | |||
3/24/21 | ||||
3/16/21 | ||||
3/15/21 | ||||
3/12/21 | ||||
3/10/21 | ||||
3/8/21 | ||||
2/27/21 | ||||
2/26/21 | 3, 4, 8-K | |||
2/25/21 | 4, 424B5, 8-K | |||
2/24/21 | 10-K, 3, 4, 8-K | |||
2/23/21 | 10-K, 4, 8-K | |||
2/22/21 | ||||
2/18/21 | ||||
2/16/21 | SC 13G/A | |||
2/4/21 | ||||
1/21/21 | 4 | |||
1/20/21 | EFFECT | |||
1/14/21 | ||||
1/6/21 | ||||
1/1/21 | ||||
12/31/20 | 10-K, 4 | |||
1/1/20 | ||||
12/31/19 | 10-K, 4 | |||
1/1/19 | ||||
12/31/18 | 10-K, 4, DEF 14A | |||
5/23/18 | 8-K | |||
1/1/18 | ||||
12/31/17 | 10-K, DEF 14A | |||
2/9/15 | 8-K, SC 13D/A | |||
2/6/14 | 8-K | |||
1/3/14 | 3, 3/A, 4, 425, 8-A12B, 8-K, CERTNAS | |||
12/31/11 | 10-K, ARS | |||
1/13/11 | ||||
12/2/10 | ||||
7/30/08 | ||||
12/31/94 | ||||
List all Filings |