Item 1.01. Entry into a Material Definitive Agreement.
On
The Merger Agreement provides that, among other things and on the terms and
subject to the conditions set forth therein, (1) the Company will be merged with
and into Kimco (the "Merger"), with Kimco continuing as the surviving
corporation in the Merger, and, (2) at the effective time of the Merger (the
"Effective Time"), each common share of beneficial interest, par value
Pursuant to the Merger Agreement, each award of restricted Company Common Shares that is outstanding as of immediately prior to the Effective Time will become vested at the Effective Time either by its terms or the terms of any of the Company's benefit plan as a result of the occurrence of the Effective Time, with any applicable performance goals deemed satisfied at the target level, and as of the Effective Time, shall be canceled and converted into the right to receive the Merger Consideration with respect to each Company common share subject to such restricted share award.
The Company's board of trust managers and Kimco's board of directors have each unanimously approved the Merger Agreement. The Company's board of trust managers has unanimously resolved to recommend that the Company's shareholders approve the Merger Agreement, and Kimco's board of directors has unanimously resolved to recommend that Kimco's common stockholders approve the Merger.
At the closing of the Merger, one member of the board of trust managers of the Company will be appointed to the Company's board of directors.
The completion of the Merger is subject to satisfaction or waiver of certain
conditions, including (1) the receipt of required approvals from Kimco's common
stockholders and the Company's shareholders, (2) the authorization for listing
of Kimco's common stock to be issued in connection with the Merger on the
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The Merger Agreement contains customary representations and warranties by each party. Additionally, the Merger Agreement provides for customary pre-closing covenants of the Company and Kimco, including, subject to certain exceptions, covenants relating to conducting their respective business in the ordinary course consistent with past practice, to maintain REIT status and refraining from taking certain actions without the other party's consent.
The Merger Agreement provides that, during the period from the date of the Merger Agreement until the Effective Time, the Company will be subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide non-public information to third parties and to engage in discussions with third parties regarding alternative acquisition proposals, subject to customary exceptions.
The Merger Agreement contains certain termination rights for the Company and
Kimco. The Merger Agreement can be terminated by mutual written consent, or by
either party (1) if there is a final, non-appealable order, decree or ruling
permanently enjoining or otherwise prohibiting the consummation of the Merger;
(2) if the Merger has not been consummated by
If the Merger Agreement is terminated because (1) the Company's board of trust
managers changes its recommendation with respect to the Merger Agreement;
(2) the Company terminates the Merger Agreement to enter into a definitive
agreement with respect to a superior proposal; or (3) the Company consummates or
enters into an agreement for an alternative transaction within twelve months
following termination under certain circumstances, the Company must pay a
termination fee of the lesser of
On
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The foregoing description of the Merger Agreement and the transactions contemplated thereby in this Current Report on Form 8-K is only a summary and does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated by reference herein.
The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement as of the specific dates therein, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company's public disclosures.
Item 8.01. Other Events
On
On
Additionally, on
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Title 2.1 Agreement and Plan of Merger, dated as ofApril 14, 2021 , between Kimco and the Company* 99.1 Joint Press Release, datedApril 15, 2021 99.2 Joint Investor Presentation, datedApril 15, 2021 99.3 Communication to Employees 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company agrees to furnish supplementally to the
schedule upon request by the
Forward Looking Statements
This communication contains certain "forward-looking" statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of the Exchange Act. Kimco and the Company intend such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 and include this statement for purposes of complying with the safe harbor provisions. Words such as "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates," "will," "should," "may," "projects," "could," "estimates" or variations of such words and other similar expressions are intended to identify such forward-looking statements, which generally are not historical in nature, but not all forward-looking statements include such identifying words. Forward-looking statements regarding Kimco and the Company include, but are not limited to, statements related to the anticipated acquisition of the Company and the anticipated timing and benefits thereof; Kimco's expected financing for the transaction; Kimco's ability to deleverage and its projected target net leverage; and other statements that are not historical facts. These forward-looking statements are based on each of the companies' current plans, objectives, estimates, expectations and intentions and inherently involve significant risks and uncertainties. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation, risks and uncertainties associated with: Kimco's and the Company's ability to complete the acquisition on the proposed terms or on the anticipated timeline, or at all, including risks and uncertainties related to securing the necessary shareholder approvals and satisfaction of other closing conditions to consummate the acquisition; the occurrence of any event, change or other circumstance that could give rise to the termination of the definitive transaction agreement relating to the proposed transaction; risks related to
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diverting the attention of the Company and Kimco management from ongoing
business operations; failure to realize the expected benefits of the
acquisition; significant transaction costs and/or unknown or inestimable
liabilities; the risk of shareholder litigation in connection with the proposed
transaction, including resulting expense or delay; the risk that the Company's
business will not be integrated successfully or that such integration may be
more difficult, time-consuming or costly than expected; Kimco's ability to
obtain the expected financing to consummate the acquisition; risks related to
future opportunities and plans for the combined company, including the
uncertainty of expected future financial performance and results of the combined
company following completion of the acquisition; effects relating to the
announcement of the acquisition or any further announcements or the consummation
of the acquisition on the market price of Kimco Common Stock or the Company
Common Shares; the possibility that, if Kimco does not achieve the perceived
benefits of the acquisition as rapidly or to the extent anticipated by financial
analysts or investors, the market price of Kimco Common Stock could decline;
general adverse economic and local real estate conditions; the inability of
major tenants to continue paying their rent obligations due to bankruptcy,
insolvency or a general downturn in their business; local real estate
conditions; increases in interest rates; foreign currency exchange rates;
increases in operating costs and real estate taxes; changes in the dividend
policy for Kimco Common Stock or preferred stock or Kimco's ability to pay
dividends; impairment charges; unanticipated changes in the company's intention
or ability to prepay certain debt prior to maturity and/or hold certain
securities until maturity; pandemics or other health crises, such as coronavirus
disease 2019 (COVID-19); and other risks and uncertainties affecting Kimco and
the Company, including those described from time to time under the caption "Risk
Factors" and elsewhere in Kimco's and the Company's
Important Additional Information and Where to Find It
In connection with the proposed merger, Kimco will file with the
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RELEVANT DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER, WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT KIMCO, THE COMPANY AND THE PROPOSED TRANSACTION.
Investors and security holders may obtain copies of these documents free of
charge through the website maintained by the
Participants in the Solicitation
Kimco and the Company and certain of their respective directors and executive
officers and other members of management and employees may be deemed to be
participants in the solicitation of proxies from the common stockholders of
Kimco and the shareholders of the Company in respect of the proposed transaction
under the rules of the
No Offer or Solicitation
This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
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