Item 8.01. Other Events. As previously disclosed, onApril 29, 2021 ,VEREIT, Inc. , aMaryland corporation ("VEREIT"), andVEREIT Operating Partnership, L.P. , aDelaware limited partnership ("VEREIT OP"), entered into an Agreement and Plan of Merger (as amended, the "Merger Agreement") with Realty Income Corporation ("Realty Income"), aMaryland corporation,Rams MD Subsidiary I, Inc. , aMaryland corporation and wholly owned subsidiary of Realty Income ("Merger Sub 1"), andRams Acquisition Sub II, LLC , aDelaware limited liability company and wholly owned subsidiary of Realty Income ("Merger Sub 2"). Pursuant to the terms and conditions of the Merger Agreement, upon the closing, (i) Merger Sub 2 will be merged with and into VEREIT OP (the "Partnership Merger"), with VEREIT OP continuing as the surviving entity and, immediately following the Partnership Merger, (ii)VEREIT will be merged with and into Merger Sub 1, with Merger Sub 1 continuing as the surviving corporation (the "Merger" and, together with the Partnership Merger, the "Mergers"). In connection with the proposed Mergers, Realty Income filed with theU.S. Securities and Exchange Commission (the "SEC") a registration statement on Form S-4 containing a joint proxy statement/prospectus, as amended, andVEREIT filed a definitive proxy statement and Realty Income filed a definitive proxy statement/prospectus with theSEC , each datedJune 29, 2021 (collectively, the "joint proxy statement/prospectus"), whichVEREIT and Realty Income first mailed to their respective stockholders on or aboutJuly 9, 2021 . Following the announcement of the Merger Agreement, as of the date of this Current Report on Form 8-K, purported stockholders ofVEREIT have filed twelve lawsuits challenging disclosures related to the Merger (the "VEREIT Complaints"). The VEREIT Complaints are Stein v.VEREIT, Inc. , et al., Case No. 1:21-cv-01409 (D. Md.June 7, 2021 ) (the "Stein Complaint"); Bowles v.VEREIT, Inc. , et al., Case No. 1:21-cv-00845 (D. Del.June 10, 2021 ) (the "Bowles Complaint"); Leach v.VEREIT, Inc. , et al., Case No. 1:21-cv-05270 (S.D.N.Y.June 14, 2021 ) (the "Leach Complaint"); Jenkins v.VEREIT, Inc. , et al., Case No. 1:21-cv-05286 (S.D.N.Y.June 15, 2021 ) (the "Jenkins Complaint"); Tacka v.VEREIT, Inc. , et al., Case No. 1:21-cv-05357 (S.D.N.Y.June 17, 2021 ) (the "Tacka Complaint"); CongregationZichron Moishe v.VEREIT, Inc. , et al., Case No. 1:21-cv-01729 (D. Colo .June 24, 2021 ) (the "CongregationZichron Moishe Complaint"); Mishra v.VEREIT, Inc. , et al., Case No. 1:21-cv-01758 (D. Colo .June 28, 2021 ) (the "Mishra Complaint"); Walker v.VEREIT, Inc. , et al., Case No. 1:21-cv-01791 (D. Colo .July 1, 2021 ) (the "Walker Complaint"); Ciccotelli v.VEREIT, Inc. , et al., Case No. 2:21-cv-02983 (E.D. Pa.July 2, 2021 ) (the "Ciccotelli Complaint"); Upton v.VEREIT, Inc. , et al., Case No. 1:21-cv-06129 (S.D.N.Y.July 16, 2021 ) (the "Upton Complaint"); Matten v.VEREIT, Inc. , et al., Case No. 1:21-cv-06212 (S.D.N.Y.July 21, 2021 ) (the "Matten Complaint"); and Halberstam v.VEREIT, Inc. , et al., Case No. 1:21-cv-02000 (D. Colo .July 23, 2021 (the "Halberstam Complaint"). The Stein, Leach, Tacka, Matten and Halberstam Complaints nameVEREIT and the members of theVEREIT board of directors as defendants. The CongregationZichron Moishe , Mishra, Walker and Upton Complaints nameVEREIT , VEREIT OP, and the members of theVEREIT board of directors as defendants. The Bowles and Ciccotelli Complaints nameVEREIT , the members of theVEREIT board of directors, VEREIT OP, Realty Income, Merger Sub 1 and Merger Sub 2 as defendants. The Jenkins Complaint namesVEREIT , the members of theVEREIT board of directors, Realty Income, Merger Sub 1 and Merger Sub 2 as defendants. Each of the VEREIT Complaints alleges thatVEREIT and the members of theVEREIT board of directors violated Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 14a-9 promulgated thereunder by preparing and disseminating a registration statement that misstates or omits certain allegedly material information. Each of the VEREIT Complaints also alleges that the members of theVEREIT board of directors violated Section 20(a) of the Exchange Act by causingVEREIT to disseminate a misleading registration statement. The Bowles and Ciccotelli Complaints further allege that Realty Income and VEREIT OP violated Section 20(a) of the Exchange Act. The Mishra, CongregationZichron Moishe , Walker and Upton Complaints further allege that Realty Income andVEREIT OP violated Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. The Jenkins Complaint further alleges that Realty Income, Merger Sub 1 and Merger Sub 2 violated Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, that the members of theVEREIT board of directors have violated the fiduciary duties they owe towardsVEREIT's stockholders by causingVEREIT to enter into the Merger at an unfair price and through an unfair process, and thatVEREIT , Realty Income, Merger Sub 1 and Merger Sub 2 aided and abetted this alleged breach of fiduciary duty. Each of the VEREIT Complaints seeks, among other things, injunctive relief enjoining the consummation of the Merger, if the Merger is consummated, rescission or rescissory damages and an award of the plaintiff's costs, including attorneys' and experts' fees. In addition, following the announcement of the Merger Agreement, as of the date of this Current Report on Form 8-K, purported stockholders of Realty Income have filed one lawsuit challenging the disclosures related to the Merger (the "Realty 1 -------------------------------------------------------------------------------- Income Complaint"). The Realty Income Complaint is Boyko v. Realty Income Corp., et al., Case No. 1:21-cv-01653 (D. Colo .,June 16, 2021 ) (together with the VEREIT Complaints, the "Complaints"). The Boyko Complaint names Realty Income and the members of the Realty Income board of directors as defendants. The Boyko Complaint alleges that Realty Income and the members of the Realty Income board of directors violated Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by preparing and disseminating a registration statement that misstates or omits certain allegedly material information. The Boyko Complaint also alleges that the members of the Realty Income board of directors violated Section 20(a) of the Exchange Act by causing Realty Income to disseminate a misleading registration statement. All of the defendants named in the Complaints believe that the claims asserted in the Complaints are entirely without merit. However, litigation is inherently uncertain and there can be no assurance regarding the likelihood that the defendants' defense of the actions will be successful. Additional lawsuits arising out of the Mergers may also be filed in the future. WhileVEREIT and Realty Income believe that the disclosures set forth in the joint proxy statement/prospectus comply fully with applicable law, to moot plaintiffs' disclosure claims and to avoid nuisance, potential expense and delay,VEREIT and Realty Income have determined to voluntarily supplement the joint proxy statement/prospectus with the below disclosures. Nothing in the below supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable law of any of the disclosures set forth herein or in the joint proxy statement/prospectus. To the contrary,VEREIT and Realty Income deny all allegations in the Complaints that any additional disclosure was or is required. As a result of the supplemental disclosures set forth herein, the attorneys for the plaintiffs who filed the Complaints have agreed to dismiss, or seek authority from their clients to dismiss, their respective actions. Supplemental Disclosures to the Joint Proxy Statement/Prospectus
The fourth full paragraph on page 44 of the joint proxy statement/prospectus is amended and restated in its entirety to read as follows:
Shortly following that conversation,
The section of the joint proxy statement/prospectus entitled "The Mergers-Opinion of Realty Income's Financial Advisor-Dividend Discount Model Analysis" is hereby supplemented as follows:
The second full paragraph on page 61 of the joint proxy statement/prospectus is amended and restated in its entirety to read as follows:
For Realty Income, Moelis utilized a range of discount rates (based on an
estimated range of the cost of equity for Realty Income and selected based on
Moelis' judgment and experience) of 6.25% to 8.75% to calculate estimated
present values as of
2 --------------------------------------------------------------------------------
terminal year one-year forward estimate of Adjusted Funds from Operations per
share for Realty Income, which reflects an assumed 4.0% growth, as projected by
the management of Realty Income, from the Adjusted Funds from Operations per
share for Realty Income for the fiscal year ending
The section of the joint proxy statement/prospectus entitled "The Mergers-Opinion of Realty Income's Financial Advisor-Other Information" is hereby supplemented as follows:
The second full paragraph on page 63 of the joint proxy statement/prospectus is amended and restated in its entirety to read as follows:
For reference only, Moelis reviewed a precedent premia paid analysis in which
Moelis reviewed premia paid in 28 selected REIT transactions announced since
2015 with transaction values over
The section of the joint proxy statement/prospectus entitled "The Mergers-Opinion of Realty Income's Financial Advisor-Miscellaneous" is hereby supplemented as follows:
The last paragraph beginning on page 63 of the joint proxy statement/prospectus is amended and restated in its entirety to read as follows:
Moelis acted as financial advisor to Realty Income in connection with the
Mergers and will receive a transaction fee of
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