Exhibit 10.1
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Thomas A.
Lewis (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 2003 Incentive Award
Plan of Realty Income Corporation (the Plan), the Company has granted to
Employee an award of 90,000 shares of restricted common stock of the Company
(the Shares).
(2) As a condition to Employees grant of
restricted stock, Employee must execute this Restricted Stock Agreement, which
sets forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except as provided in Subsections 1(c)
and (d), if Employees employment with the Company is terminated for any reason,
including, but not limited to for Cause (as defined below), death, and
disability, all unvested Shares (the Unvested Shares) as of the date of such
termination shall immediately be forfeited and shall be transferred to the
Company; provided that as to Shares that would have vested at the subsequent
Vesting Date (as hereinafter defined), such Shares shall vest on a prorated
basis based on the number of days elapsed from the prior Vesting Date through
the date of termination and rounding down to the nearest Share.
(b) Except as provided in Subsections
1(c) and (d), the Unvested Shares issued hereunder shall become vested over ten
(10) years in 10% installments on each anniversary of the Effective Date (each
such anniversary, a Vesting Date), conditioned upon Employees continued
service as an Employee, Consultant or Director of the Company as of each such
Vesting Date.
(c) Notwithstanding the provisions of
Section 1(b) hereof, in the event of a Change in Control all Unvested
Shares shall immediately become vested immediately prior to the consummation of
such Change in Control.
(d) Notwithstanding the provisions of Subsections
1(a) and(b) hereof, in the event of Employees termination of employment
without Cause or Employees Constructive Termination (each as defined below),
in either case within eighteen months following a merger or consolidation of
the Company with or into another corporation in a transaction that is not a
Change in Control (a Non-CIC Merger), then all Unvested Shares (or any
unvested rights to cash or other property for which the Unvested Shares were substituted
or exchanged in connection with the Non-CIC Merger) shall immediately become
vested.
(e) For purposes of this Agreement, Cause,
Change in Control and Good Reason shall have the following defined
meanings:
(i) Cause means (a) theft, dishonesty
or falsification of any employment or Company records; (b) malicious or
reckless disclosure of the Companys confidential or proprietary information;
(c) commission of any immoral or illegal act or any gross or willful
misconduct, where the Company reasonably determines that such act or misconduct
has (1) seriously undermined the ability of the Companys management to entrust
Employee with important matters or otherwise work effectively with Employee,
(2) contributed to the Companys loss of significant revenues or business
opportunities, or (3) significantly and detrimentally effected the business or
reputation of the Company or any of its subsidiaries; and/or (d) Employees
failure or refusal to work diligently to perform tasks or achieve goals reasonably
requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change in Control shall mean the
occurrence of any of the following:
(a) an acquisition in one transaction or
a series of related transactions (other than directly from the Company or
pursuant to awards granted under the Plan or compensatory options or other
similar awards granted by the Company) of the Companys voting securities by
any individual or entity (a Person), immediately after which such Person has
beneficial ownership of fifty percent (50%) or more of the combined voting
power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who, immediately
prior to the Effective Date, are members of the Board (the Incumbent Board),
cease for any reason to constitute at least a majority of the members of the
Board;
provided, however
, that if the election,
or nomination for election, by the Companys common stockholders, of any new
director was approved by a vote of at least a majority of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
(iii) a merger, consolidation or
reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly,
2
immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the Surviving Corporation)
in substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
(a) the
delegation to Employee of duties or the reduction of Employees duties, either
of which substantially reduces the nature, responsibility, or character of
Employees position immediately prior to such delegation or reduction;
(b) a
material reduction by the Company in Employees base salary in effect
immediately prior to such reduction;
3
(c) a
material reduction by the Company in the kind or level of employee benefits or
fringe benefits to which Employee was entitled prior to such reduction; or the
taking of any action by the Company that would adversely affect Employees
participation in any plan, program or policy generally applicable to employees
of equivalent seniority; and
(d) the
Companys relocation of Employees principal office location to a place more
than forty (40) miles from the Companys present headquarters location (except
that reasonably required travel on the Companys business shall not be
considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
4
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and all shares of Common Stock received by the Employee with respect
to such Shares as a result of stock dividends, stock splits or any other form
of recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair Market
Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
5
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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6
Exhibit 10.2
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Gary M. Malino
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 2003 Incentive Award
Plan of Realty Income Corporation (the Plan), the Company has granted to
Employee an award of 45,000 shares of restricted common stock of the Company
(the Shares).
(2) As a condition to Employees grant of
restricted stock, Employee must execute this Restricted Stock Agreement, which
sets forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except as provided in Subsections 1(c)
and (d), if Employees employment with the Company is terminated for any reason,
including, but not limited to for Cause (as defined below), death, and
disability, all unvested Shares (the Unvested Shares) as of the date of such
termination shall immediately be forfeited and shall be transferred to the
Company; provided that as to Shares that would have vested at the subsequent
Vesting Date (as hereinafter defined), such Shares shall vest on a prorated
basis based on the number of days elapsed from the prior Vesting Date through
the date of termination and rounding down to the nearest Share.
(b) Except as provided in Subsections
1(c) and (d), the Unvested Shares issued hereunder shall become vested over ten
(10) years in 10% installments on each anniversary of the Effective Date (each
such anniversary, a Vesting Date), conditioned upon Employees continued
service as an Employee, Consultant or Director of the Company as of each such
Vesting Date.
(c) Notwithstanding the provisions of
Section 1(b) hereof, in the event of a Change in Control all Unvested
Shares shall immediately become vested immediately prior to the consummation of
such Change in Control.
(d) Notwithstanding the provisions of Subsections
1(a) and(b) hereof, in the event of Employees termination of employment
without Cause or Employees Constructive Termination (each as defined below),
in either case within eighteen months following a merger or consolidation of
the Company with or into another corporation in a transaction that is not a
Change in Control (a Non-CIC Merger), then all Unvested Shares (or any
unvested rights to cash or other property for which the Unvested Shares were
substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For purposes of this Agreement, Cause,
Change in Control and Good Reason shall have the following defined
meanings:
(i) Cause means (a) theft, dishonesty
or falsification of any employment or Company records; (b) malicious or
reckless disclosure of the Companys confidential or proprietary information;
(c) commission of any immoral or illegal act or any gross or willful
misconduct, where the Company reasonably determines that such act or misconduct
has (1) seriously undermined the ability of the Companys management to entrust
Employee with important matters or otherwise work effectively with Employee,
(2) contributed to the Companys loss of significant revenues or business
opportunities, or (3) significantly and detrimentally effected the business or
reputation of the Company or any of its subsidiaries; and/or (d) Employees
failure or refusal to work diligently to perform tasks or achieve goals reasonably
requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change in Control shall mean the
occurrence of any of the following:
(a) an acquisition in one transaction or
a series of related transactions (other than directly from the Company or
pursuant to awards granted under the Plan or compensatory options or other
similar awards granted by the Company) of the Companys voting securities by
any individual or entity (a Person), immediately after which such Person has
beneficial ownership of fifty percent (50%) or more of the combined voting
power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who, immediately
prior to the Effective Date, are members of the Board (the Incumbent Board),
cease for any reason to constitute at least a majority of the members of the
Board;
provided, however
, that if the election,
or nomination for election, by the Companys common stockholders, of any new
director was approved by a vote of at least a majority of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
(iii) a merger, consolidation or
reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly,
2
immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the Surviving Corporation)
in substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
(a) the
delegation to Employee of duties or the reduction of Employees duties, either
of which substantially reduces the nature, responsibility, or character of
Employees position immediately prior to such delegation or reduction;
(b) a
material reduction by the Company in Employees base salary in effect
immediately prior to such reduction;
3
(c) a
material reduction by the Company in the kind or level of employee benefits or
fringe benefits to which Employee was entitled prior to such reduction; or the
taking of any action by the Company that would adversely affect Employees
participation in any plan, program or policy generally applicable to employees
of equivalent seniority; and
(d) the
Companys relocation of Employees principal office location to a place more
than forty (40) miles from the Companys present headquarters location (except
that reasonably required travel on the Companys business shall not be
considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the vested
Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kind of shares or
cash payment rights.
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
4
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and all shares of Common Stock received by the Employee with respect
to such Shares as a result of stock dividends, stock splits or any other form
of recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair Market
Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
5
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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6
Exhibit 10.3
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Paul M. Meurer
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 2003 Incentive Award
Plan of Realty Income Corporation (the Plan), the Company has granted to
Employee an award of 30,000 shares of restricted common stock of the Company
(the Shares).
(2) As a condition to Employees grant of
restricted stock, Employee must execute this Restricted Stock Agreement, which
sets forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except as provided in Subsections 1(c)
and (d), if Employees employment with the Company is terminated for any reason,
including, but not limited to for Cause (as defined below), death, and
disability, all unvested Shares (the Unvested Shares) as of the date of such
termination shall immediately be forfeited and shall be transferred to the
Company; provided that as to Shares that would have vested at the subsequent
Vesting Date (as hereinafter defined), such Shares shall vest on a prorated
basis based on the number of days elapsed from the prior Vesting Date through
the date of termination and rounding down to the nearest Share.
(b) Except as provided in Subsections
1(c) and (d), the Unvested Shares issued hereunder shall become vested over ten
(10) years in 10% installments on each anniversary of the Effective Date (each
such anniversary, a Vesting Date), conditioned upon Employees continued
service as an Employee, Consultant or Director of the Company as of each such
Vesting Date.
(c) Notwithstanding the provisions of
Section 1(b) hereof, in the event of a Change in Control all Unvested
Shares shall immediately become vested immediately prior to the consummation of
such Change in Control.
(d) Notwithstanding the provisions of Subsections
1(a) and(b) hereof, in the event of Employees termination of employment
without Cause or Employees Constructive Termination (each as defined below),
in either case within eighteen months following a merger or consolidation of
the Company with or into another corporation in a transaction that is not a
Change in Control (a Non-CIC Merger), then all Unvested Shares (or any
unvested rights to cash or other property for which the Unvested Shares were
substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For purposes of this Agreement, Cause,
Change in Control and Good Reason shall have the following defined
meanings:
(i) Cause means (a) theft, dishonesty
or falsification of any employment or Company records; (b) malicious or
reckless disclosure of the Companys confidential or proprietary information;
(c) commission of any immoral or illegal act or any gross or willful
misconduct, where the Company reasonably determines that such act or misconduct
has (1) seriously undermined the ability of the Companys management to entrust
Employee with important matters or otherwise work effectively with Employee,
(2) contributed to the Companys loss of significant revenues or business
opportunities, or (3) significantly and detrimentally effected the business or
reputation of the Company or any of its subsidiaries; and/or (d) Employees
failure or refusal to work diligently to perform tasks or achieve goals reasonably
requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change in Control shall mean the
occurrence of any of the following:
(a) an acquisition in one transaction or
a series of related transactions (other than directly from the Company or
pursuant to awards granted under the Plan or compensatory options or other
similar awards granted by the Company) of the Companys voting securities by
any individual or entity (a Person), immediately after which such Person has
beneficial ownership of fifty percent (50%) or more of the combined voting
power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who, immediately
prior to the Effective Date, are members of the Board (the Incumbent Board),
cease for any reason to constitute at least a majority of the members of the
Board;
provided, however
, that if the election,
or nomination for election, by the Companys common stockholders, of any new
director was approved by a vote of at least a majority of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
(iii) a merger, consolidation or
reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly,
2
immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the Surviving Corporation)
in substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
(a) the
delegation to Employee of duties or the reduction of Employees duties, either
of which substantially reduces the nature, responsibility, or character of
Employees position immediately prior to such delegation or reduction;
(b) a
material reduction by the Company in Employees base salary in effect
immediately prior to such reduction;
3
(c) a
material reduction by the Company in the kind or level of employee benefits or
fringe benefits to which Employee was entitled prior to such reduction; or the
taking of any action by the Company that would adversely affect Employees
participation in any plan, program or policy generally applicable to employees
of equivalent seniority; and
(d) the
Companys relocation of Employees principal office location to a place more
than forty (40) miles from the Companys present headquarters location (except
that reasonably required travel on the Companys business shall not be
considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the vested
Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kind of shares or
cash payment rights.
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
4
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and all shares of Common Stock received by the Employee with respect
to such Shares as a result of stock dividends, stock splits or any other form
of recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair Market
Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
5
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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6
Exhibit 10.4
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Michael R.
Pfeiffer (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 2003 Incentive Award
Plan of Realty Income Corporation (the Plan), the Company has granted to
Employee an award of 30,000 shares of restricted common stock of the Company
(the Shares).
(2) As a condition to Employees grant of
restricted stock, Employee must execute this Restricted Stock Agreement, which
sets forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except as provided in Subsections 1(c)
and (d), if Employees employment with the Company is terminated for any reason,
including, but not limited to for Cause (as defined below), death, and
disability, all unvested Shares (the Unvested Shares) as of the date of such
termination shall immediately be forfeited and shall be transferred to the
Company; provided that as to Shares that would have vested at the subsequent
Vesting Date (as hereinafter defined), such Shares shall vest on a prorated
basis based on the number of days elapsed from the prior Vesting Date through
the date of termination and rounding down to the nearest Share.
(b) Except as provided in Subsections
1(c) and (d), the Unvested Shares issued hereunder shall become vested over ten
(10) years in 10% installments on each anniversary of the Effective Date (each
such anniversary, a Vesting Date), conditioned upon Employees continued
service as an Employee, Consultant or Director of the Company as of each such
Vesting Date.
(c) Notwithstanding the provisions of
Section 1(b) hereof, in the event of a Change in Control all Unvested
Shares shall immediately become vested immediately prior to the consummation of
such Change in Control.
(d) Notwithstanding the provisions of Subsections
1(a) and(b) hereof, in the event of Employees termination of employment
without Cause or Employees Constructive Termination (each as defined below),
in either case within eighteen months following a merger or consolidation of
the Company with or into another corporation in a transaction that is not a
Change in Control (a Non-CIC Merger), then all Unvested Shares (or any
unvested rights to cash or other property for which the Unvested Shares were
substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For purposes of this Agreement, Cause,
Change in Control and Good Reason shall have the following defined
meanings:
(i) Cause means (a) theft, dishonesty
or falsification of any employment or Company records; (b) malicious or
reckless disclosure of the Companys confidential or proprietary information;
(c) commission of any immoral or illegal act or any gross or willful
misconduct, where the Company reasonably determines that such act or misconduct
has (1) seriously undermined the ability of the Companys management to entrust
Employee with important matters or otherwise work effectively with Employee,
(2) contributed to the Companys loss of significant revenues or business
opportunities, or (3) significantly and detrimentally effected the business or
reputation of the Company or any of its subsidiaries; and/or (d) Employees
failure or refusal to work diligently to perform tasks or achieve goals
reasonably requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change in Control shall mean the
occurrence of any of the following:
(a) an acquisition in one transaction or
a series of related transactions (other than directly from the Company or
pursuant to awards granted under the Plan or compensatory options or other
similar awards granted by the Company) of the Companys voting securities by
any individual or entity (a Person), immediately after which such Person has
beneficial ownership of fifty percent (50%) or more of the combined voting power
of the Companys then outstanding voting securities (other than a Non-Control
Transaction, as defined below);
(b) the individuals who, immediately
prior to the Effective Date, are members of the Board (the Incumbent Board),
cease for any reason to constitute at least a majority of the members of the
Board;
provided, however
, that if the election,
or nomination for election, by the Companys common stockholders, of any new
director was approved by a vote of at least a majority of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
(iii) a merger, consolidation or
reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly,
2
immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the Surviving Corporation)
in substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
(a) the
delegation to Employee of duties or the reduction of Employees duties, either
of which substantially reduces the nature, responsibility, or character of
Employees position immediately prior to such delegation or reduction;
(b) a
material reduction by the Company in Employees base salary in effect
immediately prior to such reduction;
3
(c) a
material reduction by the Company in the kind or level of employee benefits or
fringe benefits to which Employee was entitled prior to such reduction; or the
taking of any action by the Company that would adversely affect Employees
participation in any plan, program or policy generally applicable to employees
of equivalent seniority; and
(d) the
Companys relocation of Employees principal office location to a place more
than forty (40) miles from the Companys present headquarters location (except
that reasonably required travel on the Companys business shall not be
considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
4
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and all shares of Common Stock received by the Employee with respect
to such Shares as a result of stock dividends, stock splits or any other form
of recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
5
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Gary M. Malino
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Title:
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President and Chief Operating Officer
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EMPLOYEE
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Address:
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6
Exhibit 10.5
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Mark G. Selman
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 2003 Incentive Award
Plan of Realty Income Corporation (the Plan), the Company has granted to
Employee an award of 6,000 shares of restricted common stock of the Company
(the Shares).
(2) As a condition to Employees grant of
restricted stock, Employee must execute this Restricted Stock Agreement, which
sets forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except as provided in Subsections 1(c)
and (d), if Employees employment with the Company is terminated for any reason,
including, but not limited to for Cause (as defined below), death, and disability,
all unvested Shares (the Unvested Shares) as of the date of such termination
shall immediately be forfeited and shall be transferred to the Company;
provided that as to Shares that would have vested at the subsequent Vesting
Date (as hereinafter defined), such Shares shall vest on a prorated basis based
on the number of days elapsed from the prior Vesting Date through the date of
termination and rounding down to the nearest Share.
(b) Except as provided in Subsections
1(c) and (d), the Unvested Shares issued hereunder shall become vested over ten
(10) years in 10% installments on each anniversary of the Effective Date (each
such anniversary, a Vesting Date), conditioned upon Employees continued
service as an Employee, Consultant or Director of the Company as of each such
Vesting Date.
(c) Notwithstanding the provisions of
Section 1(b) hereof, in the event of a Change in Control all Unvested
Shares shall immediately become vested immediately prior to the consummation of
such Change in Control.
(d) Notwithstanding the provisions of Subsections
1(a) and(b) hereof, in the event of Employees termination of employment
without Cause or Employees Constructive Termination (each as defined below),
in either case within eighteen months following a merger or consolidation of
the Company with or into another corporation in a transaction that is not a
Change in Control (a Non-CIC Merger), then all Unvested Shares (or any
unvested rights to cash or other property for which the Unvested Shares were
substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For purposes of this Agreement, Cause,
Change in Control and Good Reason shall have the following defined
meanings:
(i) Cause means (a) theft, dishonesty
or falsification of any employment or Company records; (b) malicious or
reckless disclosure of the Companys confidential or proprietary information;
(c) commission of any immoral or illegal act or any gross or willful
misconduct, where the Company reasonably determines that such act or misconduct
has (1) seriously undermined the ability of the Companys management to entrust
Employee with important matters or otherwise work effectively with Employee,
(2) contributed to the Companys loss of significant revenues or business
opportunities, or (3) significantly and detrimentally effected the business or
reputation of the Company or any of its subsidiaries; and/or (d) Employees
failure or refusal to work diligently to perform tasks or achieve goals reasonably
requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change in Control shall mean the
occurrence of any of the following:
(a) an acquisition in one transaction or
a series of related transactions (other than directly from the Company or
pursuant to awards granted under the Plan or compensatory options or other
similar awards granted by the Company) of the Companys voting securities by
any individual or entity (a Person), immediately after which such Person has
beneficial ownership of fifty percent (50%) or more of the combined voting
power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who, immediately
prior to the Effective Date, are members of the Board (the Incumbent Board),
cease for any reason to constitute at least a majority of the members of the
Board;
provided, however
, that if the election,
or nomination for election, by the Companys common stockholders, of any new
director was approved by a vote of at least a majority of the Incumbent Board,
such new director shall, for purposes of this Agreement, be considered as a
member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board
(a Proxy Contest) including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) the consummation of
(iii) a merger, consolidation or
reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly,
2
immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the Surviving Corporation)
in substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
(a) the
delegation to Employee of duties or the reduction of Employees duties, either
of which substantially reduces the nature, responsibility, or character of
Employees position immediately prior to such delegation or reduction;
(b) a
material reduction by the Company in Employees base salary in effect
immediately prior to such reduction;
3
(c) a
material reduction by the Company in the kind or level of employee benefits or
fringe benefits to which Employee was entitled prior to such reduction; or the
taking of any action by the Company that would adversely affect Employees
participation in any plan, program or policy generally applicable to employees
of equivalent seniority; and
(d) the
Companys relocation of Employees principal office location to a place more
than forty (40) miles from the Companys present headquarters location (except
that reasonably required travel on the Companys business shall not be
considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the vested
Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kind of shares or
cash payment rights.
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
4
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and all shares of Common Stock received by the Employee with respect
to such Shares as a result of stock dividends, stock splits or any other form
of recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair Market
Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
5
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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6
Exhibit 10.6
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Thomas A.
Lewis (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 30,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2004 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event of
Employees termination of employment without Cause or Employees Constructive
Termination (each as defined below), in either case within eighteen months
following a merger
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the combined
voting power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
2
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
3
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement. Transfer
or sale of the Shares is subject to restrictions on transfer imposed by any
applicable state and federal securities laws.
The Unvested Shares will be held in book entry form by the Companys
Stock Transfer Agent, The Bank of New York.
As Shares vest annually, the Transfer Agent will be given instructions
to issue a certificate to the Employee for the vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the Code), with respect to
the Shares. If Employee does file a
Section 83(b) election then such election shall cause the forfeiture of
all of the Shares, without proration (notwithstanding Section 1(a)).
5
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
14.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
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REALTY INCOME CORPORATION
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|
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|
|
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By:
|
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Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
|
|
|
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EMPLOYEE
|
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|
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|
|
|
Address:
|
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6
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Thomas A.
Lewis (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 26,500 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2003 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
15.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within eighteen
months following a merger
7
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
8
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
9
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
16.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent will
be given instructions to issue a certificate to the Employee for the vested
Shares.
17.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
10
18.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
19.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
20.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
21.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
22.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
23.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
24.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
25.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
11
26.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
27.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
28.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
|
Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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12
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Thomas A.
Lewis (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 30,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2002 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
29.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within
eighteen months following a merger
13
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
14
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive Termination means Employees
resignation of employment within sixty (60) days of one or more of the
following events which remains uncured thirty (30) days after Employees
delivery of written notice thereof:
15
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
30.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
31.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
16
32.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
33.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
34.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
35.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
36.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
37.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
38.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be obligated
to deliver any new certificate representing vested Shares to the Employee or
his or her legal representative unless and until the Employee or his or her
legal representative shall have paid or otherwise satisfied in full the amount
of all federal, state and local taxes applicable to the taxable income of the
Employee resulting from the grant of the Shares or their vesting.
39.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
17
40.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
41.
Governing
Law
. This Agreement shall be governed
by and construed and enforced in accordance with California law, without giving
effect to the principles of conflict of laws thereof.
42.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this Agreement,
this Agreement shall amend and restate the Prior Agreement in its entirety, the
Prior Agreement shall be superseded in its entirety and this Agreement shall
solely govern Employees rights with respect to the terms and provisions of the
Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
|
|
|
REALTY INCOME CORPORATION
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
|
|
|
|
|
EMPLOYEE
|
|
|
|
|
|
|
|
Address:
|
|
|
|
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|
18
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Thomas A.
Lewis (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 19,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2001 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
43.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within eighteen
months following a merger
19
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
20
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common Stock.
(iii) Constructive Termination means Employees
resignation of employment within sixty (60) days of one or more of the
following events which remains uncured thirty (30) days after Employees
delivery of written notice thereof:
21
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
44.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
45.
Change
in Control Adjustment
. In addition to
the actions permitted under Section 11.3 of the Plan upon a Change in Control
the Administrator may, in its sole discretion, provide that the Unvested Shares
be assumed by the successor or survivor corporation or other entity, or a
parent or subsidiary thereof, or be substituted for by similar options, rights
or awards covering cash or the stock or other equity interests of the successor
or survivor corporation or other entity, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares or cash
payment rights.
22
46.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
47.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
48.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
49.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
50.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
51.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
52.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
53.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
23
54.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
55.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
56.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
|
Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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24
Exhibit 10.7
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Gary M. Malino
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 15,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2004 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event of
Employees termination of employment without Cause or Employees Constructive
Termination (each as defined below), in either case within eighteen months
following a merger
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the combined
voting power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
2
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
3
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the Code), with respect to
the Shares. If Employee does file a
Section 83(b) election then such election shall cause the forfeiture of
all of the Shares, without proration (notwithstanding Section 1(a)).
5
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
14.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
|
|
|
REALTY INCOME CORPORATION
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
|
|
|
|
|
EMPLOYEE
|
|
|
|
|
|
|
|
Address:
|
|
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|
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|
6
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Gary M. Malino
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 15,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2003 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
15.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within eighteen
months following a merger
7
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason shall
have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work effectively
with Employee, (2) contributed to the Companys loss of significant revenues or
business opportunities, or (3) significantly and detrimentally effected the
business or reputation of the Company or any of its subsidiaries; and/or (d)
Employees failure or refusal to work diligently to perform tasks or achieve
goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from the
Company or pursuant to awards granted under the Plan or compensatory options or
other similar awards granted by the Company) of the Companys voting securities
by any individual or entity (a Person), immediately after which such Person
has beneficial ownership of fifty percent (50%) or more of the combined voting
power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
8
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
9
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
16.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
17.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
10
18.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
19.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
20.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
21.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
22.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
23.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
24.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the Employee
duly endorsed for transfer to the Company with an aggregate Fair Market Value
on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
25.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
11
26.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
27.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
28.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
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REALTY INCOME CORPORATION
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|
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By:
|
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|
Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
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|
|
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EMPLOYEE
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|
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|
|
|
|
Address:
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12
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Gary M. Malino
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 12,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2002 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
29.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within
eighteen months following a merger
13
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
14
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days of
one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
15
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
30.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
31.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
16
32.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
33.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
34.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
35.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
36.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
37.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
38.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
39.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
17
40.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
41.
Governing
Law
. This Agreement shall be governed
by and construed and enforced in accordance with California law, without giving
effect to the principles of conflict of laws thereof.
42.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this Agreement,
this Agreement shall amend and restate the Prior Agreement in its entirety, the
Prior Agreement shall be superseded in its entirety and this Agreement shall
solely govern Employees rights with respect to the terms and provisions of the
Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
|
|
|
REALTY INCOME CORPORATION
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
|
|
|
|
|
EMPLOYEE
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
18
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Gary M. Malino
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 7,500 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2001 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
43.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within eighteen
months following a merger
19
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered as
a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
20
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
21
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
44.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition thereof
shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not apply to vested
Shares and shall not prevent transfers by will or by applicable laws of descent
and distribution. In the case of a
permitted transfer of Unvested Shares, the transferee or other recipient shall
receive and hold the Unvested Shares so transferred subject to the provisions
of this Agreement, and there shall be no further transfer of such Shares except
in accordance with the terms of this Section.
Any transferee shall acknowledge the same by signing a copy of this
Agreement. Transfer or sale of the
Shares is subject to restrictions on transfer imposed by any applicable state
and federal securities laws. The
Unvested Shares will be held in book entry form by the Companys Stock Transfer
Agent, The Bank of New York. As Shares
vest annually, the Transfer Agent will be given instructions to issue a
certificate to the Employee for the vested Shares.
45.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
22
46.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
47.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
48.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
49.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
50.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
51.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
52.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
53.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
23
54.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
55.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
56.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
|
Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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24
Exhibit 10.8
AMENDED AND
RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Paul M. Meurer
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 10,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2004 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event of
Employees termination of employment without Cause or Employees Constructive
Termination (each as defined below), in either case within eighteen months
following a merger
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the combined
voting power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
2
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
3
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the Code), with respect to
the Shares. If Employee does file a
Section 83(b) election then such election shall cause the forfeiture of
all of the Shares, without proration (notwithstanding Section 1(a)).
5
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
14.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
|
|
|
REALTY INCOME CORPORATION
|
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
|
|
|
|
|
EMPLOYEE
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
6
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Paul M. Meurer
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 9,500 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2003 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
15.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within eighteen
months following a merger
7
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work effectively
with Employee, (2) contributed to the Companys loss of significant revenues or
business opportunities, or (3) significantly and detrimentally effected the
business or reputation of the Company or any of its subsidiaries; and/or (d)
Employees failure or refusal to work diligently to perform tasks or achieve
goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
8
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
9
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in the
kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
16.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
17.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
10
18.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
19.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
20.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
21.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
22.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
23.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
24.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
25.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
11
26.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this investment
and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
27.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
28.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
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REALTY INCOME CORPORATION
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By:
|
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|
Name:
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Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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12
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Paul M. Meurer
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 10,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2002 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
29.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d) Notwithstanding
the provisions of Subsections 1(a) and(b) hereof, in the event of Employees
termination of employment without Cause or Employees Constructive Termination
(each as defined below), in either case within eighteen months following a
merger
13
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
14
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
15
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
30.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
31.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
16
32.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
33.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
34.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
35.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
36.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
37.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
38.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
39.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
17
40.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
41.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
42.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
|
|
|
REALTY INCOME CORPORATION
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
Michael R. Pfeiffer
|
|
Title:
|
Executive Vice President, General Counsel
|
|
|
|
|
|
EMPLOYEE
|
|
|
|
|
|
Address:
|
|
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18
Exhibit 10.9
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Michael R.
Pfeiffer (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 10,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2004 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event of
Employees termination of employment without Cause or Employees Constructive
Termination (each as defined below), in either case within eighteen months
following a merger
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
2
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or reorganization,
more than fifty percent (50%) of the combined voting power of the outstanding
voting securities of the corporation resulting from such merger or
consolidation or reorganization (the Surviving Corporation) in substantially
the same proportion as their ownership of the Companys voting securities
immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
3
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement. Transfer
or sale of the Shares is subject to restrictions on transfer imposed by any
applicable state and federal securities laws.
The Unvested Shares will be held in book entry form by the Companys
Stock Transfer Agent, The Bank of New York.
As Shares vest annually, the Transfer Agent will be given instructions
to issue a certificate to the Employee for the vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the Employee
or his or her legal representative unless and until the Employee or his or her
legal representative shall have paid or otherwise satisfied in full the amount
of all federal, state and local taxes applicable to the taxable income of the
Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the Code), with respect to
the Shares. If Employee does file a
Section 83(b) election then such election shall cause the forfeiture of
all of the Shares, without proration (notwithstanding Section 1(a)).
5
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
14.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
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REALTY INCOME CORPORATION
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|
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By:
|
|
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Name:
|
Gary M. Malino
|
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Title:
|
President and Chief Operating Officer
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EMPLOYEE
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Address:
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6
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Michael R.
Pfeiffer (the Employee) and Realty Income Corporation, a Maryland corporation
(the Company), as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 6,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2003 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
15.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d) Notwithstanding
the provisions of Subsections 1(a) and(b) hereof, in the event of Employees
termination of employment without Cause or Employees Constructive Termination
(each as defined below), in either case within eighteen months following a
merger
7
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason shall
have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work effectively
with Employee, (2) contributed to the Companys loss of significant revenues or
business opportunities, or (3) significantly and detrimentally effected the
business or reputation of the Company or any of its subsidiaries; and/or (d)
Employees failure or refusal to work diligently to perform tasks or achieve
goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
8
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
9
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
16.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
17.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
10
18.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
19.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
20.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
21.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
22.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
23.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
24.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the Employee
duly endorsed for transfer to the Company with an aggregate Fair Market Value
on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
25.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
11
26.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this investment
and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
27.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
28.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
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|
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REALTY INCOME CORPORATION
|
|
|
|
|
|
By:
|
|
|
|
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Name:
|
Gary M. Malino
|
|
Title:
|
President and Chief Operating Officer
|
|
|
|
|
|
EMPLOYEE
|
|
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|
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Address:
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12
Exhibit 10.10
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Mark G. Selman
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 6,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2004 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d) Notwithstanding
the provisions of Subsections 1(a) and(b) hereof, in the event of Employees
termination of employment without Cause or Employees Constructive Termination
(each as defined below), in either case within eighteen months following a merger
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the combined
voting power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
2
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or reorganization,
more than fifty percent (50%) of the combined voting power of the outstanding
voting securities of the corporation resulting from such merger or
consolidation or reorganization (the Surviving Corporation) in substantially
the same proportion as their ownership of the Companys voting securities
immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
3
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the Code), with respect to
the Shares. If Employee does file a
Section 83(b) election then such election shall cause the forfeiture of
all of the Shares, without proration (notwithstanding Section 1(a)).
5
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
14.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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6
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Mark G. Selman
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 5,800 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2003 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
15.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within eighteen
months following a merger
7
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason shall
have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work effectively
with Employee, (2) contributed to the Companys loss of significant revenues or
business opportunities, or (3) significantly and detrimentally effected the
business or reputation of the Company or any of its subsidiaries; and/or (d)
Employees failure or refusal to work diligently to perform tasks or achieve
goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the receipt of reasonable
notice in writing of such failure or refusal and an opportunity to correct the
problem. Cause shall not mean a
physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from the
Company or pursuant to awards granted under the Plan or compensatory options or
other similar awards granted by the Company) of the Companys voting securities
by any individual or entity (a Person), immediately after which such Person
has beneficial ownership of fifty percent (50%) or more of the combined voting
power of the Companys then outstanding voting securities (other than a
Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
8
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
9
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
16.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
17.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests of
the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
10
18.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
19.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
20.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
21.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
22.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
23.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
24.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
25.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
11
26.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
27.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
28.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
|
COMPANY
|
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REALTY INCOME CORPORATION
|
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|
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|
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By:
|
|
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Name:
|
Michael R. Pfeiffer
|
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Title:
|
Executive Vice President, General Counsel
|
|
|
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EMPLOYEE
|
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|
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|
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Address:
|
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12
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Mark G. Selman
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 16,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2002 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
29.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within
eighteen months following a merger
13
or consolidation of the Company
with or into another corporation in a transaction that is not a Change in
Control (a Non-CIC Merger), then all Unvested Shares (or any unvested rights
to cash or other property for which the Unvested Shares were substituted or
exchanged in connection with the Non-CIC Merger) shall immediately become
vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
14
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
15
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
30.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
31.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
16
32.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
33.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
34.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
35.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
36.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
37.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
38.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be obligated
to deliver any new certificate representing vested Shares to the Employee or
his or her legal representative unless and until the Employee or his or her
legal representative shall have paid or otherwise satisfied in full the amount
of all federal, state and local taxes applicable to the taxable income of the
Employee resulting from the grant of the Shares or their vesting.
39.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
17
40.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
41.
Governing
Law
. This Agreement shall be governed
by and construed and enforced in accordance with California law, without giving
effect to the principles of conflict of laws thereof.
42.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this Agreement,
this Agreement shall amend and restate the Prior Agreement in its entirety, the
Prior Agreement shall be superseded in its entirety and this Agreement shall
solely govern Employees rights with respect to the terms and provisions of the
Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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18
AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between Mark G. Selman
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant to the 1994 Stock Option and
Incentive Award Plan of Realty Income Corporation (the Plan), the Company has
previously granted to Employee an award of 5,000 shares of restricted common
stock of the Company (the Shares) pursuant to the terms and conditions of
that certain Restricted Stock Agreement with the Company dated as of January 1,
2001 (the Prior Agreement).
(2) The Company and the Employee now
desire to amend the Prior Agreement in certain respects as set forth in this
Restricted Stock Agreement, which will hereafter supersede that Prior Agreement
and set forth the rights and obligations of the parties with respect to the
Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
43.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event
of Employees termination of employment without Cause or Employees
Constructive Termination (each as defined below), in either case within
eighteen months following a merger
19
or
consolidation of the Company with or into another corporation in a transaction
that is not a Change in Control (a Non-CIC Merger), then all Unvested Shares
(or any unvested rights to cash or other property for which the Unvested Shares
were substituted or exchanged in connection with the Non-CIC Merger) shall
immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
20
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly, immediately following such merger, consolidation or
reorganization, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation or reorganization (the Surviving Corporation) in
substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
21
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
44.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
45.
Change
in Control Adjustment
. In addition to
the actions permitted under Section 11.3 of the Plan upon a Change in Control
the Administrator may, in its sole discretion, provide that the Unvested Shares
be assumed by the successor or survivor corporation or other entity, or a
parent or subsidiary thereof, or be substituted for by similar options, rights
or awards covering cash or the stock or other equity interests of the successor
or survivor corporation or other entity, or a parent or subsidiary thereof,
with appropriate adjustments as to the number and kind of shares or cash
payment rights.
22
46.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
47.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
48.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
49.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
50.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
51.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
52.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
53.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
23
54.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
55.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
56.
Waiver
of Rights under Prior Agreement
.
Employee acknowledges and agrees that upon the execution of this
Agreement, this Agreement shall amend and restate the Prior Agreement in its
entirety, the Prior Agreement shall be superseded in its entirety and this
Agreement shall solely govern Employees rights with respect to the terms and
provisions of the Shares.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
|
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Name:
|
Michael R. Pfeiffer
|
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Title:
|
Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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24
Exhibit 10.11
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made between
(the Employee) and Realty Income Corporation, a Maryland corporation (the Company),
as of January 1, 2005 (the Effective Date).
RECITALS
(1) Pursuant
to the 2003 Incentive Award Plan of Realty Income Corporation (the Plan), the
Company has granted to Employee an award of
shares of restricted common stock of the Company (the Shares).
(2) As
a condition to Employees grant of restricted stock, Employee must execute this
Restricted Stock Agreement, which sets forth the rights and obligations of the
parties with respect to the Shares.
(3) The
Plans terms are hereby incorporated herein by reference. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Plan.
1.
Forfeiture;
Vesting
.
(a) Except
as provided in Subsections 1(c) and (d), if Employees employment with the
Company is terminated for any reason, including, but not limited to for Cause
(as defined below), death, and disability, all unvested Shares (the Unvested
Shares) as of the date of such termination shall immediately be forfeited and
shall be transferred to the Company; provided that as to Shares that would have
vested at the subsequent Vesting Date (as hereinafter defined), such Shares
shall vest on a prorated basis based on the number of days elapsed from the
prior Vesting Date through the date of termination and rounding down to the
nearest Share.
(b) Except
as provided in Subsections 1(c) and (d), the Unvested Shares issued hereunder
shall become vested over ten (10) years in 10% installments on each anniversary
of the Effective Date (each such anniversary, a Vesting Date), conditioned
upon Employees continued service as an Employee, Consultant or Director of the
Company as of each such Vesting Date.
(c) Notwithstanding
the provisions of Section 1(b) hereof, in the event of a Change in Control
all Unvested Shares shall immediately become vested immediately prior to the
consummation of such Change in Control.
(d)
Notwithstanding the provisions of Subsections 1(a) and(b) hereof, in the event of
Employees termination of employment without Cause or Employees Constructive
Termination (each as defined below), in either case within eighteen months
following a merger or consolidation of the Company with or into another
corporation in a transaction that is not a Change in Control (a Non-CIC Merger),
then all Unvested Shares (or any unvested rights to cash or other property for
which the Unvested Shares were substituted or exchanged in connection with the Non-CIC
Merger) shall immediately become vested.
(e) For
purposes of this Agreement, Cause, Change in Control and Good Reason
shall have the following defined meanings:
(i) Cause
means (a) theft, dishonesty or falsification of any employment or Company
records; (b) malicious or reckless disclosure of the Companys confidential or
proprietary information; (c) commission of any immoral or illegal act or any
gross or willful misconduct, where the Company reasonably determines that such
act or misconduct has (1) seriously undermined the ability of the Companys
management to entrust Employee with important matters or otherwise work
effectively with Employee, (2) contributed to the Companys loss of significant
revenues or business opportunities, or (3) significantly and detrimentally
effected the business or reputation of the Company or any of its subsidiaries;
and/or (d) Employees failure or refusal to work diligently to perform tasks or
achieve goals reasonably requested by the Board,
provided
such breach, failure or refusal continues after the
receipt of reasonable notice in writing of such failure or refusal and an
opportunity to correct the problem. Cause
shall not mean a physical or mental disability.
(ii) Change
in Control shall mean the occurrence of any of the following:
(a) an acquisition in
one transaction or a series of related transactions (other than directly from
the Company or pursuant to awards granted under the Plan or compensatory
options or other similar awards granted by the Company) of the Companys voting
securities by any individual or entity (a Person), immediately after which
such Person has beneficial ownership of fifty percent (50%) or more of the
combined voting power of the Companys then outstanding voting securities
(other than a Non-Control Transaction, as defined below);
(b) the individuals who,
immediately prior to the Effective Date, are members of the Board (the Incumbent
Board), cease for any reason to constitute at least a majority of the members
of the Board;
provided, however
, that if the
election, or nomination for election, by the Companys common stockholders, of
any new director was approved by a vote of at least a majority of the Incumbent
Board, such new director shall, for purposes of this Agreement, be considered
as a member of the Incumbent Board;
provided further, however
,
that no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened Election Contest (as described in Rule 14a-11 promulgated under
the Securities Exchange Act of 1934, as amended) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board (a Proxy Contest) including by reason of any agreement intended to
avoid or settle any Election Contest or Proxy Contest; or
(c) the consummation of
(iii) a
merger, consolidation or reorganization involving the Company unless:
(A) the stockholders of the Company,
immediately before such merger, consolidation or reorganization, own, directly
or indirectly,
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immediately following such merger,
consolidation or reorganization, more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the Surviving Corporation)
in substantially the same proportion as their ownership of the Companys voting
securities immediately before such merger, consolidation or reorganization,
(B) the individuals who were members of
the Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute at least
a majority of the members of the board of directors of the Surviving
Corporation, or a corporation beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Corporation, and
(C) no Person,
other than
(i) the Company, (ii) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by the Company, the Surviving
Corporation, or any related entity or (iii) any Person who, together with its
Affiliates, immediately prior to such merger, consolidation or reorganization
had beneficial ownership of fifty percent (50%) or more of the Companys then
outstanding voting securities, owns, together with its Affiliates, beneficial
ownership of fifty percent (50%) or more of the combined voting power of the
Surviving Corporations then outstanding voting securities.
(A transaction described in clauses (A)
through (C) above is referred to herein as a Non-Control Transaction);
(d) a complete
liquidation or dissolution of the Company; or
(e) an agreement for the
sale or other disposition of all or substantially all of the assets or business
of the Company to any Person.
For purposes of this Agreement, Affiliate shall mean, with respect to
any Person, any other Person that, directly or indirectly, controls, is
controlled by, or is under common control with, such Person. Neither the Company nor any Person controlled
by the Company shall be deemed to be an Affiliate of any holder of Common
Stock.
(iii) Constructive
Termination means Employees resignation of employment within sixty (60) days
of one or more of the following events which remains uncured thirty (30) days
after Employees delivery of written notice thereof:
(a) the delegation to Employee of duties or
the reduction of Employees duties, either of which substantially reduces the
nature, responsibility, or character of Employees position immediately prior
to such delegation or reduction;
(b) a material reduction by the Company in
Employees base salary in effect immediately prior to such reduction;
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(c) a material reduction by the Company in
the kind or level of employee benefits or fringe benefits to which Employee was
entitled prior to such reduction; or the taking of any action by the Company
that would adversely affect Employees participation in any plan, program or
policy generally applicable to employees of equivalent seniority; and
(d) the Companys relocation of Employees
principal office location to a place more than forty (40) miles from the
Companys present headquarters location (except that reasonably required travel
on the Companys business shall not be considered a relocation).
2.
Transfer
of Shares
. Unless permitted by the
Administrator, Unvested Shares or any interest or right therein or part thereof
shall not be liable for the debts, contracts or engagements of the Employee or
his or her successors in interest and shall not be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any other legal
or equitable proceedings (including bankruptcy), and any attempted disposition
thereof shall be null and void and of no effect;
provided
,
however
, that this Section 2 shall not
apply to vested Shares and shall not prevent transfers by will or by applicable
laws of descent and distribution. In the
case of a permitted transfer of Unvested Shares, the transferee or other
recipient shall receive and hold the Unvested Shares so transferred subject to
the provisions of this Agreement, and there shall be no further transfer of
such Shares except in accordance with the terms of this Section. Any transferee shall acknowledge the same by
signing a copy of this Agreement.
Transfer or sale of the Shares is subject to restrictions on transfer
imposed by any applicable state and federal securities laws. The Unvested Shares will be held in book
entry form by the Companys Stock Transfer Agent, The Bank of New York. As Shares vest annually, the Transfer Agent
will be given instructions to issue a certificate to the Employee for the
vested Shares.
3.
Change
in Control Adjustment
. In addition
to the actions permitted under Section 11.3 of the Plan upon a Change in
Control the Administrator may, in its sole discretion, provide that the
Unvested Shares be assumed by the successor or survivor corporation or other
entity, or a parent or subsidiary thereof, or be substituted for by similar
options, rights or awards covering cash or the stock or other equity interests
of the successor or survivor corporation or other entity, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares or cash payment rights.
4.
Dividends
and Voting Rights
. Employee shall be
entitled to any and all distributions on the Shares, payable from the Effective
Date. Employee shall have all voting
rights with respect to Shares.
5.
Ownership
Rights, Duties
. This Agreement shall
not affect in any way the ownership, voting rights or other rights or duties of
Employee, except as specifically provided herein.
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6.
Legends
. The certificate evidencing the Shares issued
shall be endorsed with any legend required under applicable federal and state
securities laws and the Companys Articles of Incorporation.
7.
Adjustment
for Stock Splits, Etc
. All
references to the number of Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other recapitalization
or change in the Shares which may be made by the Company after the date of this
Agreement in accordance with the Plan.
Any and
all shares of Common Stock received by the Employee with respect to such Shares
as a result of stock dividends, stock splits or any other form of
recapitalization shall also be subject to this Agreement.
8.
Notices
. Notices required hereunder shall be given in
person or by registered mail to the address of the Employee shown on the
records of the Company, and to the Company at its principal executive office.
9.
Survival
of Terms
. This Agreement shall apply
to and bind Employee and the Company and their respective permitted assignees
and transferees, heirs, legatees, executors, administrators and legal
successors, including without limitation the Companys acquirer in a Change in
Control.
10.
Tax
Withholding
. Notwithstanding
anything to the contrary in this Agreement, the Company shall be entitled to
require payment in cash or deduction from other compensation payable to the
Employee of any sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or exercise of the
Shares. The Company may, in its
discretion, allow the Employee to deliver shares of Common Stock owned by the
Employee duly endorsed for transfer to the Company with an aggregate Fair
Market Value on the date of delivery equal to the statutory minimum sums to be
withheld. The Company shall not be
obligated to deliver any new certificate representing vested Shares to the
Employee or his or her legal representative unless and until the Employee or
his or her legal representative shall have paid or otherwise satisfied in full
the amount of all federal, state and local taxes applicable to the taxable
income of the Employee resulting from the grant of the Shares or their vesting.
11.
No
Section 83(b) Elections
.
Because such election could have an impact on the Companys ability to
continue as a real estate investment trust under the Code (defined below),
Employee agrees that Employee will not file an election under
Section 83(b) of the Internal Revenue Code of 1986, as amended (the Code),
with respect to the Shares. If Employee
does file a Section 83(b) election then such election shall cause the
forfeiture of all of the Shares, without proration (notwithstanding
Section 1(a)).
12.
Representations
. Employee has reviewed with his or her own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Employee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Employee understands that he/she
(and not the Company) shall be responsible for his/her own tax liability that
may arise as a result of the grant of Shares or the transactions contemplated
by this Agreement.
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13.
Governing
Law
. This Agreement shall be
governed by and construed and enforced in accordance with California law,
without giving effect to the principles of conflict of laws thereof.
Employee represents that he/she has read this
Agreement and is familiar with its terms and provisions. Employee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Companys Board of
Directors or the Compensation Committee thereof upon any questions arising
under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed
made as of the date first set forth above.
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COMPANY
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REALTY INCOME CORPORATION
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By:
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Name:
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Michael R. Pfeiffer
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Title:
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Executive Vice President, General Counsel
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EMPLOYEE
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Address:
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