Maryland | | | 6798 | | | 13-2744380 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification No.) |
David E. Shapiro, Esq. Steven R. Green, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 (212) 403-1000 | | | Brian L. Harper President and Chief Executive Officer RPT Realty 19 W. 44th Street, Suite 1002 New York, New York 10036 (212) 221-1261 | | | Mark S. Opper, Esq. Blake Liggio, Esq. Caitlin Tompkins, Esq. Goodwin Procter LLP 100 Northern Avenue Boston, Massachusetts 02210 (617) 570-1000 |
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | Emerging growth company | | | ☐ |
For information about Kimco: Kimco Realty Corporation 500 North Broadway, Suite 201 Jericho, NY 11753 (516) 869-9000 Attn.: Investor Relations | | | For information about RPT: RPT Realty 19 W 44th Street, Suite 1002 New York, NY 10036 (212) 221-1261 Attn.: Secretary |
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Q: | What is the proposed transaction? |
A: | Kimco and RPT have entered into a merger agreement, pursuant to which, subject to the terms and conditions set forth in the merger agreement, Kimco will acquire RPT according to the following steps: (i) in the company merger, RPT will merge with and into Merger Sub, with Merger Sub continuing as the surviving entity and a direct wholly owned subsidiary of Kimco, (ii) immediately thereafter, in the contribution, Kimco will contribute all the outstanding membership interests of Merger Sub to Kimco OP and (iii) immediately prior to the company merger, in the partnership merger, OP Merger Sub will merge with and into RPT OP, with RPT OP continuing as the surviving entity. As a result of the mergers and the contribution, RPT OP will become a wholly owned subsidiary of Kimco OP. |
Q: | What will happen in the proposed transaction? |
A: | At the effective time of the company merger (which we refer to as the “company merger effective time”), (i) each RPT common share (other than certain shares as set forth in the merger agreement) issued and outstanding immediately prior to the company merger effective time will be cancelled and automatically converted into the right to receive 0.6049 shares of Kimco common stock (which we refer to as the “common share consideration”), together with cash in lieu of fractional shares of Kimco common stock (which we refer to as the “fractional share consideration”), and (ii) each RPT preferred share (other than certain shares as set forth in the merger agreement) issued and outstanding immediately prior to the company merger effective time will be cancelled and automatically converted into the right to receive one depositary share representing one one-thousandth of a share of new Kimco preferred stock having the rights, preferences and privileges substantially as set forth in Annex B to this proxy statement/prospectus (which we refer to as the “preferred share consideration”), in each case, without interest, and subject to any withholding required under applicable law, upon the terms and subject to the conditions set forth in the merger agreement. |
Q: | What will happen to RPT as a result of the mergers? |
A: | Following the mergers, RPT will no longer be a publicly traded company, and RPT common shares and RPT preferred shares will be delisted from the NYSE and deregistered under the Exchange Act. As a result of the company merger, RPT will be merged with and into Merger Sub with Merger Sub continuing as the surviving entity and a direct wholly owned subsidiary of Kimco. Immediately following the company merger, Kimco will contribute to Kimco OP all of the membership interests of Merger Sub, such that Merger Sub will, upon completion of all the transactions contemplated by the merger agreement, continue as a direct wholly owned subsidiary of Kimco OP. |
Q: | What happens if the market price of shares of Kimco common stock or RPT common shares changes before the closing of the mergers? |
A: | Changes in the market price of Kimco common stock or RPT common shares at or prior to the effective time of the company merger will not change the number of shares of Kimco common stock that RPT shareholders will receive. The exchange ratio is fixed at 0.6049 shares of Kimco common stock for each RPT common share, except for customary adjustments in the event of certain changes in Kimco’s or RPT’s capitalization or the payment of certain dividends by Kimco or RPT to the extent necessary to maintain its status as a “real estate investment trust” within the meaning of Section 856 of the U.S. Internal Revenue Code of 1986, as amended (which we refer to, respectively, as a “REIT” and the “Code”), or avoid or reduce the imposition of any entity-level income or excise tax (a “permitted REIT dividend”) in each case as provided in the merger agreement. Because the exchange ratio is fixed, the value of the consideration to be received by RPT shareholders in the mergers will depend on the market price of shares of Kimco common stock at the time of the mergers. |
Q: | Why am I receiving this document? |
A: | The mergers cannot be completed without the approval of the Merger Proposal by the affirmative vote of holders of RPT common shares representing at least two-thirds of all votes entitled to be cast on the matter. |
Q: | Why is RPT proposing the mergers? |
A: | The RPT board of trustees believes that the mergers will provide a number of significant potential benefits and strategic opportunities that are in the best interests of RPT and its shareholders. For more information regarding key factors the RPT board of trustees considered in determining to recommend that RPT’s shareholders approve the mergers and the other transactions contemplated by the merger agreement, see the section entitled “The Mergers — Recommendation of the RPT Board of Trustees; RPT’s Reasons for the Mergers” beginning on page 44 of this proxy statement/prospectus. |
Q: | When and where will the special meeting be held? |
A: | The special meeting will be held on |
Q: | How do I vote? |
A: | If you are a holder of record of RPT common shares, you may vote at the special meeting by proxy through the internet, by telephone or by mail, or by attending the special meeting and voting via the special meeting website, as described below. |
Q: | What am I being asked to vote upon? |
A: | At the special meeting, RPT shareholders will be asked to consider and vote on the following proposals: |
1. | the Merger Proposal – A proposal to approve the company merger and the other transactions contemplated by the merger agreement on the terms and conditions set forth in the Merger Agreement; |
2. | the Compensation Proposal – A proposal to approve, by non-binding, advisory vote, certain compensation that may be paid or become payable to RPT’s named executive officers that is based on or otherwise relates to the mergers; and |
3. | the Adjournment Proposal – A proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the Merger Proposal if there are insufficient votes at the time of such adjournment to approve the Merger Proposal. |
Q: | What vote is required to approve each proposal? |
A: | Proposal 1: Merger Proposal. The Merger Proposal requires the affirmative vote of holders of RPT common shares representing at least two-thirds of all votes entitled to vote on the matter at the special meeting. |
Q: | How does the RPT board of trustees recommend that I vote? |
A: | The RPT board of trustees recommends that holders of RPT common shares vote “FOR” the Merger Proposal, “FOR” the Compensation Proposal and “FOR” the Adjournment Proposal. For a more complete description of the recommendation of the board of trustees of RPT, see “The Mergers — Recommendation of the RPT Board of Trustees; RPT’s Reasons for the Mergers” beginning on page 44. |
Q: | How many votes do I have? |
A: | All RPT shareholders of record at the close of business on |
Q: | I own RPT preferred shares. Do I have a vote on account of the RPT preferred shares I own? |
A: | No. Only holders of RPT common shares as of the close of business on the record date are entitled to vote on the proposals at the special meeting. Holders of RPT preferred shares may not vote at the special meeting. |
Q: | What constitutes a quorum? |
A: | The presence, either in person (virtually) or by properly executed proxy, of RPT shareholders representing a majority of all votes entitled to be cast at the special meeting constitutes a quorum for the purposes of the special meeting. Abstentions will be counted as present for purposes of determining a quorum at the special meeting. Shares held in “street name” will not be counted as present for the purpose of determining the existence of a quorum at the special meeting unless the holder of RPT common shares provides their bank, broker or other nominee with voting instructions for at least one of the proposals before the special meeting. |
Q: | If my shares of RPT common shares are held in “street name” by my broker, will my broker vote my shares for me? |
A: | If you hold your shares through a bank, broker or other nominee in “street name” instead of as a shareholder of record, you must follow the voting instructions provided by your bank, broker or other nominee in order to vote your shares. |
Q: | What will happen if I fail to instruct my bank, broker or other nominee how to vote? |
A: | If you hold your RPT common shares in “street name,” your shares will not be represented and will not be voted on any matter unless you affirmatively instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instructions provided by your bank, broker or other nominee. Banks, brokers or other nominees will not be able to vote on any of the proposals at the special meeting unless they have received voting instructions from the beneficial owners. It is therefore critical that you cast your vote by instructing your bank, broker or other nominee on how to vote. |
Q: | What will happen if I fail to vote or I abstain from voting? |
1. | Merger Proposal — If you are a RPT shareholder and fail to vote, fail to instruct your broker, bank or other nominee to vote or abstain from voting it will have the same effect as a vote “AGAINST” the Merger Proposal. |
2. | Compensation Proposal — If you are a RPT shareholder and fail to vote, fail to instruct your broker, bank or other nominee to vote or abstain from voting, it will have no effect on the result of the vote on the Compensation Proposal, provided that a quorum is otherwise present at the special meeting. |
3. | Adjournment Proposal — If you are a RPT shareholder and fail to vote, fail to instruct your broker, bank or other nominee to vote or abstain from voting, it will have no effect on the result of the vote on the Adjournment Proposal, regardless of whether a quorum is present at the special meeting. |
Q: | What if I return my proxy card without indicating how to vote? |
A: | If you properly sign your proxy card but do not mark the boxes showing how your RPT common shares should be voted on a matter, the RPT common shares represented by your properly signed proxy will be voted in accordance with the recommendations of the RPT board of trustees. |
Q: | Can I change my vote? |
A: | Any RPT shareholder giving a proxy has the right to revoke it at any time before the proxy is voted at the special meeting. |
Q: | What are the material U.S. federal income tax consequences of the company merger to U.S. holders of RPT common shares or RPT preferred shares? |
A: | The company merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. It is a condition to the completion of the mergers that Kimco and RPT receive written opinions from their respective counsel, dated as of the closing date, to the effect that the company merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If the company merger so qualifies, then a U.S. holder (as defined in the discussion under the heading “The Mergers — Material U.S. Federal Income Tax Consequences of the Company Merger”) of RPT common shares or RPT preferred shares generally will not recognize any gain or loss for U.S. federal income tax purposes upon the receipt of shares of Kimco common stock or depositary shares representing shares of new Kimco preferred stock in exchange for RPT common shares or RPT preferred shares, respectively, in the company merger (other than gain or loss with respect to cash received in lieu of a fractional share of Kimco common stock, if any, and gain from certain potential cash distributions, if any). For more information, see the section entitled “The Mergers — Material U.S. Federal Income Tax Consequences of the Company Merger” beginning on page 92 of this proxy statement/prospectus. |
Q: | Are there any conditions to the closing of the mergers that must be satisfied for the mergers to be completed? |
A: | Yes. In addition to the approval by the RPT shareholders of the Merger Proposal, there are a number of conditions that must be satisfied or waived for the mergers to be completed. For more information, see the section entitled “The Merger Agreement — Conditions to Completion of the Mergers” beginning on page 84 of this proxy statement/prospectus. |
Q: | When do you expect the mergers to be completed? |
A: | Kimco and RPT are working to complete the mergers in the beginning of calendar year 2024. However, the mergers are subject to various conditions, and it is possible that factors outside the control of Kimco and RPT could result in the mergers being completed at a later time, or not at all. |
Q: | How will I receive the merger consideration to which I am entitled at the company merger effective time? |
A: | The merger agreement provides that, as soon as reasonably practicable after the company merger effective time, Kimco will cause the exchange agent to mail to each holder of record of a certificate representing the RPT common shares and RPT preferred shares a letter of transmittal and instructions for surrendering any certificates representing RPT common shares or RPT preferred shares in exchange for the applicable merger consideration and, if applicable, cash in lieu of fractional shares of Kimco common stock. |
Q: | What will happen to outstanding RPT equity awards in the mergers? |
A: | RPT Restricted Share Awards. As of immediately prior to the company merger effective time, each restricted award of RPT common shares (which we refer to as a “RPT restricted share award”) that is issued and outstanding as of immediately prior to the company merger effective time will automatically become fully vested and all restrictions with respect thereto will lapse and each RPT common share subject thereto will be cancelled and retired and automatically converted into the right to receive (upon the proper surrender of the applicable certificate or, in the case of a book entry share, the proper surrender of such book entry share), as of the company merger effective time, the sum of (x) the common share consideration, plus (y) the fractional share consideration, if any, and the holder of each RPT restricted share award that vests in accordance with the merger agreement will be entitled to receive a cash amount equal to the value, as of immediately prior to the company merger effective time, of the dividend equivalent with respect to such RPT common shares to the extent unpaid as of the company merger effective time, if any, subject to the requirements and contingencies specified therein. |
Q: | What happens if the mergers are not completed? |
A: | If the Merger Proposal is not approved by RPT shareholders, or if the mergers are not completed for any other reason, RPT shareholders will not receive any payment for their RPT common shares or RPT preferred shares in connection with the mergers. Instead, RPT will remain an independent public company, RPT shareholders will continue to own their RPT common shares and RPT preferred shares, as applicable, and the RPT common shares and RPT preferred shares will continue to be registered under the Exchange Act and listed on the NYSE. Under specified circumstances, if the mergers are not completed, RPT may be obligated to pay Kimco a termination fee of $33.6 million (which we refer to as the “termination fee”). For more information, see the section entitled “The Merger Agreement — Termination of the Merger Agreement” beginning on page 87 of this proxy statement/prospectus. |
Q: | Are RPT shareholders entitled to appraisal rights or dissenters’ rights in connection with the mergers? |
A: | No. RPT shareholders are not entitled to appraisal rights or dissenters’ rights under the Maryland General Corporation Law (which we refer to as the “MGCL”), as incorporated into the Maryland REIT Law. For more information, see the section entitled “The Mergers — No Appraisal Rights or Dissenters’ Rights” beginning on page 64 of this proxy statement/prospectus. |
Q: | Who will be the board of directors and executive officers of Kimco following the mergers (which we refer to as the “combined company”)? |
A: | The directors and executive officers of Kimco immediately prior to the company merger effective time will continue to serve as the directors and executive officers of the combined company. |
Q: | What do I need to do now? |
A: | Carefully read and consider the information contained in and incorporated by reference into this proxy statement/prospectus, including its annexes. |
Q: | Will I receive any fractional shares of Kimco common stock in connection with the mergers? |
A: | No fractional share of Kimco common stock will be issued as merger consideration. Any holder of record of RPT common shares otherwise entitled to receive fractional shares of Kimco common stock pursuant to the company merger will be entitled to receive a cash payment, without interest, in lieu of such fractional share, valued based on the volume weighted average of the closing price of shares of Kimco common stock on the NYSE on each of the last 10 consecutive trading days ending on and including the third business day immediately preceding the closing date of the mergers. No holder of record of RPT common shares receiving a cash payment in lieu of fractional shares of Kimco common stock will be entitled to any dividends, voting rights or other rights in respect of any fractional share of Kimco common stock. |
Q: | What happens if I sell my RPT common shares or RPT preferred shares before the closing of the mergers? |
A: | In order to receive the common share consideration, you must hold RPT common shares immediately prior to the company merger effective time. Consequently, if you transfer your RPT common shares before such time, you will have transferred your right to receive the common share consideration in respect of such RPT common shares if the mergers are completed. |
Q: | Should I send in my RPT common share or RPT preferred share certificates now or do I need to do anything with my book-entry shares, as applicable? |
A: | No. Please do not send in your RPT share certificates, if any, with your proxy. After the completion of the mergers, the exchange agent will send you instructions for exchanging RPT share certificates for the applicable merger consideration. |
Q: | What respective equity stakes will RPT shareholders and Kimco stockholders hold in the combined company immediately following the mergers? |
A: | Based on the number of RPT common shares, shares of Kimco common stock and the number of RPT equity awards outstanding on |
Q: | Can I attend the special meeting in person? |
A: | No. The special meeting will be held solely by means of remote communication in a virtual meeting format only and can be accessed by visiting www.virtualshareholdermeeting.com/RPT2023SM, where you will be able to listen to the special meeting, submit questions and vote. Because there will not be a physical meeting location, you will not be able to attend the special meeting in person. |
Q: | Why am I being asked to consider and vote on the Compensation Proposal? |
A: | Under SEC rules, RPT is required to seek a non-binding, advisory vote with respect to compensation that may be paid or become payable to the RPT named executive officers that is based on or otherwise relates to the mergers. |
Q: | Will a proxy solicitor be used? |
A: | RPT has engaged Innisfree M&A Incorporated to assist in the solicitation of proxies for the special meeting and estimates that it will pay Innisfree M&A Incorporated a base fee of approximately $25,000. RPT has also agreed to reimburse Innisfree M&A Incorporated for reasonable out-of-pocket expenses and disbursements incurred in connection with the proxy solicitation. In addition to mailing proxy solicitation materials, RPT’s trustees, officers and employees may also solicit proxies in person, by telephone or by any other electronic means of communication deemed appropriate. No additional compensation will be paid to RPT’s trustees, officers or employees for such services. |
Q: | Who can help answer my questions? |
A: | If you have questions about the mergers or the accompanying proxy statement/prospectus, need assistance submitting your proxy or voting your RPT common shares, would like additional copies of this proxy statement/prospectus or need to obtain proxy cards or other information related to the proxy solicitation, please contact: |
| | Kimco Common Stock (Close) | | RPT common shares (Close) | | Equivalent Per Share Value of common share consideration (giving effect to the exchange ratio) (Close) | | | Kimco Common Stock (Close) | | RPT common shares (Close) | | Equivalent Per Share Value of common share consideration (giving effect to the exchange ratio) (Close) | |||||
August 25, 2023 | | $18.75 | | $9.57 | | $11.34 | | $18.75 | | $9.57 | | $11.34 | ||||||
October 6, 2023 | | $16.52 | | $9.94 | | $9.99 | ||||||||||||
October 31, 2023 | | $17.94 | | $10.79 | | $10.85 |
• | by Kimco, if, prior to obtaining the approval of the Merger Proposal by the RPT shareholders, RPT, its board, or a committee thereof (a) effects an adverse recommendation change (as defined below), (b) fails to, after the public announcement of an acquisition proposal or an intention to make an acquisition proposal, recommend against such acquisition proposal and to publicly reaffirm the recommendation of the RPT board of trustees within 10 business days of being requested by Kimco to do so, (c) fails to include the recommendation of the RPT board of trustees in this proxy statement/prospectus, (d) approves, adopts, publicly endorses or recommends, or enters into or allows RPT or any of its subsidiaries to enter into a definitive agreement for, any acquisition proposal or (e) materially violates any of its non-solicitation obligations set forth in the merger agreement and as described in “—No Solicitation; Change in RPT Board of Trustees Recommendation” beginning on page 81 of this proxy statement/prospectus; or |
| | Kimco common stock | | RPT common shares | | | Kimco common stock | | RPT common shares | |||||||||||||||||||||||||||
Date | | High | | Low | | Close | | High | | Low | | Close | | High | | Low | | Close | | High | | Low | | Close | ||||||||||||
August 25, 2023 | | $18.96 | | $18.71 | | $18.75 | | $9.68 | | $9.54 | | $9.57 | | $18.96 | | $18.71 | | $18.75 | | $9.68 | | $9.54 | | $9.57 | ||||||||||||
October 6, 2023 | | $16.84 | | $16.36 | | $16.52 | | $10.11 | | $9.82 | | $9.94 | ||||||||||||||||||||||||
October 31, 2023 | | $17.96 | | $17.31 | | $17.94 | | $10.79 | | $10.41 | | $10.79 |
| | Kimco common stock | | RPT common shares | | | Kimco common stock | | RPT common shares | |||||||||||||||||||||||||||
Date | | High | | Low | | Close | | High | | Low | | Close | | High | | Low | | Close | | High | | Low | | Close | ||||||||||||
August 25, 2023 | | $18.96 | | $18.71 | | $18.75 | | $11.47 | | $11.32 | | $11.34 | | $18.96 | | $18.71 | | $18.75 | | $11.47 | | $11.32 | | $11.34 | ||||||||||||
October 6, 2023 | | $16.84 | | $16.36 | | $16.52 | | $10.19 | | $9.90 | | $9.99 | ||||||||||||||||||||||||
October 31, 2023 | | $17.96 | | $17.31 | | $17.94 | | $10.86 | | $10.47 | | $10.85 |
○ | the mergers will combine two strong and complementary portfolios of open-air, grocery-anchored shopping centers and mixed-use assets; |
○ | the combined company will provide RPT shareholders with greater exposure to a more geographically diversified asset portfolio and high-quality, investment-grade top ten tenants; |
○ | the combined company is expected to have a strong and flexible balance sheet, as the mergers are expected to be leverage neutral for Kimco, which leverage profile is expected to provide the combined company with continued operational and strategic flexibility; |
○ | the combined company will have a greater presence and emphasis in certain key markets than RPT on a standalone basis, including a larger portfolio of high-quality assets highly concentrated in the Sun Belt and Coastal markets as compared to the Midwest market; the combination of RPT and Kimco is expected to generate corporate and operational cost savings; and |
○ | the combined company will have meaningful scale, which is expected to allow it to expand its earning base, capitalize on its national tenant relationships to drive revenue synergies and deconcentrate near-term capital spend. |
• | Opinion of Financial Advisor. The RPT board of trustees considered the oral opinion rendered by Lazard to the RPT board of trustees on August 27, 2023 (which was subsequently confirmed in writing by delivery of Lazard’s written opinion addressed to the RPT board of trustees dated the same date) that, as of August 27, 2023, and based upon and subject to the various assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken by Lazard in connection with its opinion, the common share consideration to be paid to the holders of RPT common shares (other than RPT common shares owned by Kimco OP, Merger Sub and OP Merger Sub or any subsidiary of any such Kimco entity or RPT) in the transaction was fair, from a financial point of view, to such holders. See the section entitled “The Mergers — Opinion of RPT’s Financial Advisor” beginning on page 48 of this proxy statement/prospectus and Annex C to this proxy statement/prospectus. |
• | Superior Proposals. The RPT board of trustees has the ability, under certain circumstances, to consider and respond to an unsolicited acquisition proposal, to furnish information to the person making such a proposal, to engage in discussions or negotiations with the person making such a proposal, and to terminate the merger agreement in order to enter into a superior proposal, subject to certain notice requirements and the payment of an approximately $33.6 million termination fee to Kimco (as described in the section entitled “The Merger Agreement — Termination of the Merger Agreement” beginning on page 87 of this proxy statement/prospectus). |
○ | the limited scope of the conditions to closing, including that no merger control filings (including pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder), no sales of existing RPT properties or vote of the Kimco stockholders are required to consummate the mergers; |
○ | the level of Kimco’s commitment to satisfy the conditions to closing, and the assessment of the RPT board of trustees, after considering the advice of its outside legal counsel, regarding the likelihood of such closing conditions being satisfied; |
○ | the scope of what can constitute a material adverse effect under the merger agreement and the exceptions therefrom that were negotiated between the parties; |
○ | that RPT is entitled to specific performance of Kimco’s obligations under the merger agreement; and |
○ | other terms of the merger agreement, including, among other things: |
○ | RPT will be required to afford Kimco certain matching rights prior to the RPT board of trustees being able to make an adverse recommendation change or effect a superior proposal termination; and |
○ | Kimco will be entitled to the termination fee of $33.6 million in specified circumstances, including if the merger agreement is terminated by RPT to accept a superior proposal or if Kimco exercises its right to terminate the merger agreement after the RPT board of trustees makes an adverse recommendation change, including to recommend an alternative acquisition proposal; |
• | various other risks associated with the mergers and the businesses of RPT, Kimco and the combined company described in the section entitled “Risk Factors” beginning on page 21 of this proxy statement/prospectus. |
• | reviewed various financial forecasts and other data provided to Lazard by RPT relating to the business of RPT, including the RPT Forecasts, as defined and summarized in the section entitled “The Mergers — Certain RPT Unaudited Prospective Financial Information” beginning on page 53 of this proxy statement/prospectus; |
| | | | Implied Values of Common Share Consideration based on: | ||||||||
Implied Equity Value Reference Range per RPT Common Share | | | Closing Price of RPT Common Shares on August 25, 2023 | | | Kimco Common Stock Closing Price on August 25, 2023 of $18.75 | | | Kimco Common Stock 5-day Volume Weighted Average Price on August 25, 2023 of $18.76 | | | Kimco Common Stock 20-day Volume Weighted Average Price on August 25, 2023 of $19.74 |
$8.36 – $12.56 | | | $9.57 | | | $11.34 | | | $11.35 | | | $11.94 |
Multiple Reference Ranges | | | Low | | | Median | | | Mean | | | High |
2023 Price/FFO Multiple | | | 10.5x | | | 11.7x | | | 12.0x | | | 13.9x |
2024 Price/FFO Multiple | | | 9.2x | | | 11.5x | | | 11.4x | | | 13.1x |
2023 Price/AFFO Multiple | | | 13.4x | | | 15.9x | | | 16.0x | | | 19.3x |
2024 Price/AFFO Multiple | | | 12.0x | | | 15.0x | | | 14.9x | | | 17.5x |
| | | | | | Implied Values of Common Share Consideration based on: | |||||||||
Multiple Reference Ranges | | | Implied Equity Value Reference Ranges per RPT Common Share | | | Closing Price of RPT Common Shares on August 25, 2023 | | | Kimco Common Stock Closing Price on August 25, 2023 of $18.75 | | | Kimco Common Stock 5-day Volume Weighted Average Price on August 25, 2023 of $18.76 | | | Kimco Common Stock 20-day Volume Weighted Average Price on August 25, 2023 of $19.74 |
2023 Price/FFO | | | $10.34 – $13.31 | | | $9.57 | | | $11.34 | | | $11.35 | | | $11.94 |
2024 Price/FFO | | | $10.41 – $13.55 | | |||||||||||
2023 Price/AFFO | | | $9.50 – $11.46 | | |||||||||||
2024 Price/AFFO | | | $7.20 – $8.81 | |
Announcement Date | | | Acquiror | | | Target |
May 2023 | | | Regency Centers Corporation | | | Urstadt Biddle Properties Inc. |
March 2022 | | | Wheeler Real Estate Investment Trust, Inc. and DRA / KPR Joint Venture | | | Cedar Realty Trust, Inc. |
July 2021 | | | Kite Realty Group Trust | | | Retail Properties of America, Inc. |
April 2021 | | | Kimco Realty Corporation | | | Weingarten Realty Investors |
December 2015 | | | Funds managed by DRA Advisors LLC | | | Inland Real Estate Corporation |
Multiple Reference Range | | | 25th Percentile | | | Median | | | Mean | | | 75th Percentile |
NTM Price/FFO Multiple | | | 11.0x | | | 12.5x | | | 13.3x | | | 15.9x |
| | | | Implied Values of Common Share Consideration based on: | ||||||||
Implied Equity Value Reference Range per RPT Common Share | | | Closing Price of RPT Common Shares on August 25, 2023 | | | Kimco Common Stock Closing Price on August 25, 2023 of $18.75 | | | Kimco Common Stock 5-day Volume Weighted Average Price on August 25, 2023 of $18.76 | | | Kimco Common Stock 20-day Volume Weighted Average Price on August 25, 2023 of $19.74 |
$11.02 – $15.90 | | | $9.57 | | | $11.34 | | | $11.35 | | | $11.94 |
| | ($ in millions, except per RPT common share data) | ||||||||||||||||
| | 2023E(1) | | | 2024E | | | 2025E | | | 2026E | | | 2027E | | | 2028E | |
GAAP NOI at Share | | | $163 | | | $173 | | | $188 | | | $195 | | | $205 | | | $210 |
Recurring EBITDA at Share | | | $132 | | | $141 | | | $159 | | | $166 | | | $175 | | | $180 |
Operating Funds from Operations(2) | | | $94 | | | $100 | | | $112 | | | $114 | | | $118 | | | $124 |
Operating FFO per Share(3) | | | $0.99 | | | $1.05 | | | $1.17 | | | $1.18 | | | $1.23 | | | $1.28 |
Adjusted Funds from Operations(4) | | | $63 | | | $51 | | | $85 | | | $85 | | | $100 | | | $112 |
AFFO per Share(3) | | | $0.66 | | | $0.54 | | | $0.88 | | | $0.89 | | | $1.04 | | | $1.16 |
(1) | Reflects RPT management projections through December 31, 2023. |
(2) | Funds from operations (which we refer to as “FFO”) is a supplemental non-GAAP financial measure utilized to evaluate the operating performance of real estate companies. FFO is defined, in accordance with standards established by the National Association of Real Estate |
(3) | FFO per share reflects the conversion of the RPT preferred shares per the RPT management team’s calculation methodology. RPT preferred shares are dilutive to FFO if FFO per share is approximately $0.96 or greater. |
(4) | Adjusted funds from operations (which we refer to as “AFFO”) is a supplemental non-GAAP financial measure defined as OFFO as adjusted for certain items, including but not limited to, recurring capital expenditures, leasing costs, non-cash rental income and non-cash general and administrative expense. The calculation of AFFO differs from Nareit’s definition of FFO and may not be comparable to that of other REITs and real estate companies. |
| | ($ in millions) | ||||||||||||||||
| | 2024E | | | 2025E | | | 2026E | | | 2027E | | | 2028E | | |||
Unlevered Free Cash Flow(1) | | | $41 | | | $59 | | | $99 | | | $144 | | | $158 | |
(1) | Unlevered free cash flow, a non-GAAP financial measure, was calculated by taking EBITDA and adjusting for maintenance, leasing and development capital expenditures, net joint venture and preferred investments and certain other cash flows. |
Name | | Number of Unvested RPT Restricted Share Awards (#) | | Estimated Aggregate RPT Restricted Share Award Value ($)(1) | | Number of Unvested RPT RSU Award/Phantom Share Awards (#) | | Estimated Aggregate RPT RSU Award/Phantom Share Award Value ($) | | Number of Unvested RPT Restricted Share Awards (#) | | Estimated Aggregate RPT Restricted Share Award Value ($)(1) | | Number of Unvested RPT RSU Award/Phantom Share Awards (#) | | Estimated Aggregate RPT RSU Award/Phantom Share Award Value ($)(2) | ||||||||
Executive Officers | | | | | | | | | ||||||||||||||||
Brian L. Harper | | 490,709 | | $6,021,588 | | 1,706,844 | | $19,983,388 | | 490,709 | | $6,021,588 | | 1,706,844 | | $19,983,388 | ||||||||
Michael P. Fitzmaurice | | 144,388 | | $1,775,066 | | 306,827 | | $3,577,274 | | 144,388 | | $1,775,066 | | 306,827 | | $3,577,274 | ||||||||
Timothy Collier | | 56,050 | | $672,337 | | 224,582 | | $2,607,771 | | 56,050 | | $672,337 | | 224,582 | | $2,607,771 | ||||||||
Heather R. Ohlberg | | 41,459 | | $496,549 | | 129,329 | | $1,484,319 | | 41,459 | | $496,549 | | 129,329 | | $1,484,319 | ||||||||
Raymond J. Merk | | 22,988 | | $275,021 | | 85,053 | | $986,335 | | 22,988 | | $275,021 | | 85,053 | | $986,335 | ||||||||
Trustees | | | | | | | | | ||||||||||||||||
Richard L. Federico | | 9,570 | | $109,289 | | — | | — | | 9,570 | | $109,289 | | — | | — | ||||||||
Arthur H. Goldberg | | 9,570 | | $109,289 | | 58,647 | | $669,749 | | 9,570 | | $109,289 | | 58,647 | | $669,749 | ||||||||
Joanna T. Lau | | 9,570 | | $109,289 | | — | | — | | 9,570 | | $109,289 | | — | | — | ||||||||
David J. Nettina | | 9,570 | | $109,289 | | — | | — | | 9,570 | | $109,289 | | — | | — | ||||||||
Laurie M. Shahon | | 9,570 | | $109,289 | | — | | — | | 9,570 | | $109,289 | | — | | — | ||||||||
Andrea M. Weiss | | 9,570 | | $109,289 | | — | | — | | 9,570 | | $109,289 | | — | | — |
(1) | Includes the cash value of the dividend equivalent right with respect to each such RPT restricted share award as of September 28, 2023 ($486,390 for Mr. Harper, $146,369 for Mr. Fitzmaurice, $40,093 for Mr. Collier, $28,891 for Ms. Ohlberg, $15,716 for Mr. Merk, $1,340 for Mr. Federico, $1,340 for Mr. Goldberg, $1,340 for Ms. Lau, $1,340 for Mr. Nettina, $1,340 for Ms. Shahon and $1,340 for Ms. Weiss). |
(2) | Includes the cash value of the dividend equivalent right with respect to each such RPT RSU award and RPT phantom share award as of September 28, 2023 ($730,188 for Mr. Harper, $116,265 for Mr. Fitzmaurice, $74,486 for Mr. Collier, $25,488 for Ms. Ohlberg, $26,937 for Mr. Merk, and $8,211 for Mr. Goldberg). |
Name | | | Cash Compensation ($)(1) | | | Continuation of Health and Welfare Benefits and Housing and Moving Expenses ($)(2) | | | Total |
Brian L. Harper | | | $4,887,500 | | | $35,315 | | | $4,922,815 |
Michael P. Fitzmaurice | | | $2,260,548 | | | $31,359 | | | $2,291,907 |
Timothy Collier | | | $1,893,885 | | | $31,359 | | | $1,925,244 |
Heather R. Ohlberg | | | $1,838,725 | | | $28,650 | | | $1,867,375 |
Raymond J. Merk | | | $1,092,000 | | | $51,859 | | | $1,143,859 |
(1) | Represents the cash payments payable to each executive officer under the applicable employment agreement or the change in control policy, consisting of an amount equal to two times the sum of the executive officer’s (i) annual base salary ($850,000 for Mr. Harper, $513,761 for Mr. Fitzmaurice, $445,620 for Mr. Collier, $432,641 for Ms. Ohlberg, and $312,000 for Mr. Merk), and (ii) an amount equal to 150% of the executive’s target annual cash bonus for 2023 ($1,062,500 for Mr. Harper, $411,009 for Mr. Fitzmaurice, $334,215 for Mr. Collier, $324,481 for Ms. Ohlberg, and $156,000 for Mr. Merk). |
(2) | Represents an estimate of the cost to provide continued medical, dental, and vision benefits for 18 months following termination. For Mr. Merk, the amount also includes the estimated lease payments for the remaining term on his apartment lease as of September 28, 2023 ($16,920) and $10,000 for reimbursement of moving expenses pursuant to the terms of his offer letter as it is contemplated to be amended pursuant to the merger agreement. |
Name | | | Bonus ($) |
Brian L. Harper | | | $1,275,000 |
Michael P. Fitzmaurice | | | $493,211 |
Timothy Collier | | | $401,058 |
Heather R. Ohlberg | | | $389,377 |
Raymond J. Merk | | | $187,200 |
(i) | an assumption that the mergers are completed on September 28, 2023; |
(ii) | the value of a RPT common share assuming a share price of $11.28, which was the average closing price of a RPT common share over the first five trading days following the first public announcement of the merger agreement on August 28, 2023; |
(iii) | each named executive officer’s salary and target annual cash bonus as in effect as of the date of this proxy statement/prospectus; |
(iv) | the number of common shares underlying unvested RPT restricted share awards and RPT RSU awards held by the named executive officers as of September 28, 2023, the latest practicable date before the filing of this proxy statement/prospectus, assuming the actual level of performance for awards for which performance has been certified, the maximum level of performance for RPT RSU awards granted after 2018 for which performance has not been certified and target performance for RPT RSU awards granted in 2018, and excludes any RPT restricted share awards and RPT RSU awards that vested in accordance with their terms prior to September 28, 2023; |
(v) | the assumption that each named executive officer experiences a termination of employment by the executive officer for “good reason” or by RPT other than for “cause” (as such terms are defined in the applicable employment agreement or in the change in control policy, as applicable) immediately following the completion of the mergers; and |
(vi) | the assumption that no reduction in payments or benefits will be necessary to mitigate the impact of Sections 280G and 4999 of the Code. |
Named Executive Officer | | | Cash ($)(1) | | | Equity ($)(2) | | | Perquisites/ Benefits ($)(3) | | | Total ($) |
Brian L. Harper | | | $6,162,500 | | | $26,004,976 | | | $ 35,315 | | | $32,202,791 |
Michael P. Fitzmaurice | | | $2,753,759 | | | $5,352,339 | | | $31,359 | | | $8,137,457 |
Timothy Collier | | | $2,294,943 | | | $3,280,108 | | | $31,359 | | | $5,606,410 |
Heather R. Ohlberg | | | $2,228,102 | | | $1,980,868 | | | $28,650 | | | $4,237,620 |
Raymond J. Merk | | | $1,279,200 | | | $1,261,355 | | | $51,859 | | | $2,592,414 |
(1) | As described in the section entitled “— Severance Entitlements” of this proxy statement/prospectus, the cash payments payable to each named executive officer consist of (i) a severance payment in an amount equal to two times (A) the named executive officer’s annual base salary, plus (B) 150% of the named executive officer’s target annual cash bonus opportunity and (ii) a 2023 annual cash bonus in an amount equal to 120% of the named executive officer’s target annual cash bonus for 2023, as described in “— 2023 Annual Bonus.” The payments under clause (i) are “double-trigger,” as they will be payable only if the named executive officer experiences a qualifying termination of employment following completion of the mergers. The payments under clause (ii) are “single trigger” and will be payable upon the closing of the mergers, subject to the named executive officer’s continued employment through the closing, whether or not such named executive officer’s employment is later terminated. |
(2) | The estimated amounts shown in this column represent the aggregate value of each named executive officer’s unvested RPT restricted share awards and RPT RSU awards, as described in the section entitled “— Treatment of Equity and Equity-Based Awards” of this proxy statement/prospectus, as of September 28, 2023 (the assumed closing date of the mergers solely for purposes of this compensation-related disclosure). The estimated payments in respect of the named executive officers’ unvested RPT restricted share awards and RPT RSU awards shown in the table above are “single-trigger” benefits in that they will be payable shortly following completion of the mergers, whether or not such named executive officer’s employment is later terminated. The amounts reported include the cash value of the dividend equivalent right with respect to RPT restricted share awards and RPT RSU awards held by the named executive officers as of September 28, 2023 ($1,216,578 for Mr. Harper, $262,634 for Mr. Fitzmaurice, $114,579 for Mr. Collier, $54,379 for Ms. Ohlberg, $42,653 for Mr. Merk). |
(3) | As described in the section entitled “— Severance Entitlements,” of this proxy statement/prospectus the amounts shown in this column represent an estimate of the cost to provide continued medical, dental, and vision benefits for 18 months following termination. In addition, as described in the section entitled “— Executive Employment Agreements,” of this proxy statement/prospectus for Mr. Merk, |
• | declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Kimco or other equity securities or ownership interests in Kimco, except for (A) the declaration and payment by Kimco of its regular quarterly dividend at a rate not to exceed $0.23 per share of its common stock (provided that Kimco and the Kimco board of directors will be permitted to increase its quarterly dividend without RPT’s consent by no more than 10% and to declare and pay such increased quarterly dividend) or permitted REIT dividend as described in the section entitled “The Mergers — Dividends” beginning on page 63 of this proxy statement/prospectus; (B) dividends in respect of shares of Kimco Class L preferred stock pursuant to the terms thereof, (C) dividends in respect of shares of Kimco Class M preferred stock pursuant to the terms thereof and (D) corresponding payments in respect of equity awards; |
(i) | the Merger Proposal – A proposal to approve the company merger and the other transactions contemplated by the merger agreement on the terms and conditions set forth in the merger agreement. |
(ii) | the Compensation Proposal – A proposal to approve, by non-binding, advisory vote, certain compensation that may be paid or become payable to RPT’s named executive officers of RPT that is based on or otherwise relates to the mergers. |
(iii) | the Adjournment Proposal – A proposal to approve one or more adjournments of the special meeting to another date, time or place, if necessary or appropriate, to solicit additional proxies in favor of the Merger Proposal if there are insufficient votes at the time of such adjournment to approve the Merger Proposal. |
i. | Merger Proposal — If you are a RPT shareholder and fail to vote, fail to instruct your broker, bank or other nominee to vote or abstain from voting, it will have the same effect as a vote “AGAINST” the Merger Proposal, provided that a quorum is otherwise present at the special meeting. |
ii. | Compensation Proposal — If you are a RPT shareholder and fail to vote, fail to instruct your broker, bank or other nominee to vote or abstain from voting, it will have no effect on the result of the vote on the Compensation Proposal, provided that a quorum is otherwise present at the special meeting. |
iii. | Adjournment Proposal — If you are a RPT shareholder and fail to vote, fail to instruct your broker, bank or other nominee to vote or abstain from voting, it will have no effect on the result of the vote on the Adjournment Proposal, regardless of whether a quorum is present at the special meeting. |
(1) | the price paid by the intended transferee; or |
(2) | if the intended transferee did not give value for such shares (through a gift, devise or otherwise), a price per share equal to the market value of the shares on the date of the purported transfer to the intended transferee, |
CR1 = CR0 × | | | OS1 |
| OS0 |
CR1 = CR0 × | | | OS0+X |
| OS0+Y |
CR1 = CR0 × | | | SP0 |
| SP0 - FMV |
CR1 = CR0 × | | | FMV + MP0 |
| MP0 |
CR1 = CR0 × | | | AC + (SP1 X OS1) |
| OS0 - SP1 |
CR1 = CR0 × | | | AC + (SP1 X OS1) |
| OS0 - SP1 |
Share Price ($) | |||||||||||||||||||||
$18.93 | | | $20.40 | | | $21.16 | | | $22.66 | | | $24.17 | | | $25.69 | | | $27.19 | | | $30.22 |
344.4 | | | 309.5 | | | 280.6 | | | 227.1 | | | 178.3 | | | 130.4 | | | 77.3 | | | 0 |
Name of Beneficial Owner | | | Number of Shares Beneficially Owned(1) | | | Percent of Shares |
Brian L. Harper | | | 752,569 | | | * |
Richard L. Federico | | | | | * | |
Arthur H. Goldberg | | | 95,953(3) | | | * |
Joanna T. Lau | | | 54,232 | | | * |
David J. Nettina | | | 124,419(4) | | | * |
Laurie M. Shahon | | | 74,727 | | | * |
Andrea M. Weiss | | | 59,363 | | | * |
Michael P. Fitzmaurice | | | 205,545 | | | * |
Timothy Collier | | | 101,236 | | | * |
Raymond J. Merk | | | 46,868 | | | * |
Heather R. Ohlberg | | | 60,203 | | | * |
All Trustees and Executive Officers as a Group (11 Persons) | | | | | 1.9% | |
More Than 5% Beneficial Owners: | | | | | ||
BlackRock, Inc. 55 East 52nd Street New York, NY 10055 | | | 16,986,327(6) | | | 19.6% |
The Vanguard Group 100 Vanguard Blvd. Malvern, PA 19355 | | | 14,055,513(7) | | | 16.2% |
Macquarie Group Limited 50 Martin Place Sydney, New South Wales, Australia | | | 7,476,868(8) | | | 8.6% |
Name of Beneficial Owner | | | Number of Shares Beneficially Owned(1) | | | Percent of Shares |
CenterSquare Investment Management LLC 630 West Germantown Pike, Suite 300 Plymouth Meeting, PA 19462 | | | 7,201,460(9) | | | 8.3% |
State Street Corporation One Lincoln Street Boston, MA 02111 | | | 5,724,644(10) | | | 6.6% |
Wellington Management Group LLP 280 Congress Street Boston, MA 02210 | | | 4,967,412(11) | | | 5.7% |
* | less than 1% of the total RPT common shares outstanding. |
(1) | Number of common shares beneficially owned includes outstanding common shares and common shares which are not outstanding that the person has the right to acquire within 60 days after the date of this table. Certain common shares included in this column are currently in the form of restricted common shares, all owned directly by such person, each of which represents the right to receive one common share upon vesting. During the vesting period, holders of restricted common shares have voting rights as if such restricted common shares were vested. Holdings of restricted common shares are as follows: Brian L. Harper, 490,669 common shares; Richard L. Federico, 9,570 common shares; Arthur H. Goldberg, 9,570 common shares; Joanna Lau, 9,570 common shares; David J. Nettina, 9,570 common shares; Laurie M. Shahon, 9,570 common shares; Andrea M. Weiss, 9,570 common shares; Michael P. Fitzmaurice, 144,376 common shares; Timothy Collier, 56,050 common shares; Raymond J. Merk, 22,988 common shares; and Heather R. Ohlberg, 41,459 common shares. |
(2) | Includes |
(3) | Includes 48,700 common shares owned by Mr. Goldberg’s wife and 5,000 common shares owned by a pension trust. Mr. Goldberg disclaims beneficial ownership of the common shares owned by his wife and the trust. Excludes 58,647 common shares deferred under certain of RPT’s equity incentive plans. |
(4) | Includes 4,555 common shares that Mr. Nettina could acquire upon conversion of RPT preferred shares owned by him. |
(5) | Includes trustees and executive officers as of |
(6) | Based on a Schedule 13G/A filed by BlackRock Inc. (BlackRock) with the SEC on January 23, 2023. BlackRock has sole voting power with respect to 16,738,217 common shares, sole dispositive power with respect to 16,986,327 common shares and shared voting and/or dispositive power with respect to none of such common shares. The percentage of beneficial ownership has been adjusted to reflect RPT’s actual common shares outstanding as of the close of business on |
(7) | Based on a Schedule 13G/A filed by The Vanguard Group (Vanguard) with the SEC on February 9, 2023. The Vanguard Group has sole voting power with respect to none of the common shares, shared voting power with respect to 133,642 common shares, sole dispositive power with respect to 13,838,072 common shares and shared dispositive power with respect to 217,441 common shares. The percentage of beneficial ownership has been adjusted to reflect RPT’s actual common shares outstanding as of the close of business on |
(8) | Based on a Schedule 13G/A jointly filed by Macquarie Group Limited (Macquarie Group), Macquarie Management Holdings Inc. (Macquarie Management), Macquarie Investment Management Business Trust and Macquarie Investment Management Australia Limited with the SEC on February 14, 2023. The principal business address of Macquarie Management and Macquarie Investment Management Business Trust is 2005 Market Street, Philadelphia, PA 19103. Macquarie Group has shared voting and/or dispositive power and sole voting and/or dispositive power with respect to none of such common shares. Each of Macquarie Management and Macquarie Investment Management Business Trust has sole voting power with respect to 7,397,598 common shares, sole dispositive power with respect to 7,397,598 common shares and shared voting and/or dispositive power with respect to none of such common shares. Macquarie Investment Management Australia Limited has sole voting power with respect to 17,757 common shares, sole dispositive power with respect to 17,757 common shares and shared voting and/or dispositive power with respect to none of such common shares. The percentage of beneficial ownership has been adjusted to reflect RPT’s actual common shares outstanding as of the close of business on |
(9) | Based on a Schedule 13G filed by CenterSquare Investment Management LLC (CenterSquare) with the SEC on February 10, 2023. CenterSquare has sole voting power with respect to none of the common shares, sole dispositive power with respect to 7,201,460 common shares and shared voting and/or dispositive power with respect to none of such common shares. The percentage of beneficial ownership has been adjusted to reflect RPT’s actual common shares outstanding as of the close of business on |
(10) | Based on a Schedule 13G/A filed by State Street Corporation (State Street) with the SEC on January 31, 2023. State Street has shared voting power with respect to 4,580,239 common shares, shared dispositive power with respect to 5,724,644 common shares and sole voting and/or dispositive power with respect to none of such common shares. The percentage of beneficial ownership has been adjusted to reflect RPT’s actual common shares outstanding as of the close of business on |
(11) | Based on a Schedule 13G/A jointly filed by Wellington Management Group LLP (Wellington Management Group), Wellington Group Holdings LLP (Wellington Group Holdings), Wellington Investment Advisors Holdings LLP (Wellington Investment Advisors) and Wellington Management Company LLP (Wellington Management Company) with the SEC on February 6, 2023. Each of Wellington Management Group, Wellington Group Holdings and Wellington Investment Advisors has shared voting power with respect to 4,899,719 common shares, shared dispositive power with respect to 4,967,412 common shares and sole voting and/or dispositive power with respect to none of such common shares. Wellington Management Company has shared voting power with respect to 4,785,506 common shares, shared dispositive power with respect to 4,853,199 common shares and sole voting and/or dispositive power with respect to none of such common shares. The percentage of beneficial ownership has been adjusted to reflect our actual common shares outstanding as of the close of business on |
Name of Beneficial Owner | | | Number of Shares Beneficially Owned | | | Percent of Shares |
David J. Nettina | | | 1,200 | | | * |
All Trustees and Executive Officers as a Group (1 Person) | | | 1,200 | | | * |
More Than 5% Shareholders: | | | | | ||
Infrastructure Capital Advisors, LLC 1325 Avenue of the Americas, 28th Floor New York, NY 10019 | | | 179,545(1) | | | 9.7% |
* | less than 1% of the total RPT preferred shares outstanding. |
(1) | Based on a Schedule 13G/A jointly filed by Infrastructure Capital Advisors, LLC, Virtus Infra Cap U.S. Preferred Stock ETF, a Series of ETF is Series Trust I (Virtus), Jay Hatfield, and InfraCap Equity Income Fund ETF, a series of Series Portfolios Trust (InfraCap Equity), with the SEC on February 14, 2023. Each of Infrastructure Capital Advisors, LLC and Jay Hatfield has shared voting and/or dispositive power and sole voting and/or dispositive power with respect to none of such RPT preferred shares. Virtus has sole voting and/or dispositive power with respect to none of such RPT preferred shares and shared voting and/or dispositive power with respect to 179,545 of such RPT preferred shares. InfraCap Equity has sole voting and/or dispositive power with respect to none of such RPT preferred shares and shared voting and/or dispositive power with respect to 5,986 of such RPT preferred shares. The percentage of beneficial ownership has been adjusted to reflect RPT’s actual RPT preferred shares outstanding as of the close of business on |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
Corporate Governance | | | Kimco is a Maryland corporation that has elected to be taxed as a REIT for U.S. federal income tax purposes. The rights of Kimco stockholders are governed by the MGCL, the Kimco charter and the Kimco bylaws. | | | RPT is a Maryland real estate investment trust that has elected to be taxed as a REIT for U.S. federal income tax purposes. The rights of RPT shareholders are governed by the MRL, the RPT Declaration of Trust MRL, certain sections of the MGCL that, under the MRL or otherwise, are made specifically applicable to Maryland real estate investment trusts, the RPT declaration of trust and the RPT bylaws. |
| | | | |||
Authorized Capital Stock or Shares of Beneficial Interest | | | Kimco is authorized to issue (a) 750,000,000 shares of common stock, $0.01 par value per share, (b) 384,046,000 shares of excess stock, $0.01 par value per share and (c) 7,054,000 shares of preferred stock, $1.00 par value per share. Common Stock. As of Preferred Stock. The Kimco board of directors is authorized, without stockholder | | | RPT is authorized to issue 240,000,000 common shares of beneficial interest, $0.01 par value per share, and 10,000,000 preferred shares of beneficial interest, $0.01 par value per share. Common Shares. As of Preferred Shares. The RPT board of trustees is authorized, without shareholder action, to designate and issue one or more classes of series of preferred shares. The |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | action, to establish and issue one or more classes or series of preferred stock and fix the designations, powers, preferences and rights of the shares of such classes or series and the qualifications, limitations or restrictions thereon, including, but not limited to, the fixing of the dividend rights, dividend rate or rates, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions) and the liquidation preferences. As of In the company merger, Kimco is expected to issue 1,849 shares of new Kimco preferred stock represented by depositary shares with materially the same terms as those of the RPT preferred shares, as more fully described in this proxy statement/prospectus. | | | preferred shares of each class or series shall have such designations, preferences, conversion, exchange or other rights, participations, voting powers, options, restrictions, limitations as to dividends or distributions, qualifications, or terms or conditions of redemption as set by the trustees. As of | |
| | | | |||
Voting Rights | | | Common Stock. Each holder of Kimco common stock is entitled to one vote per share on each matter submitted for their vote at any meeting of Kimco stockholders for each share of Kimco common stock held as of the record date for the meeting. If a quorum exists, action on a matter is approved if the action receives the approving vote of a majority of the votes cast in person or by proxy, unless the matter being approved is one upon which by express provision of law, the Kimco charter or the Kimco bylaws require a different vote. Under Maryland law, a Maryland corporation generally cannot dissolve, amend its charter, merge, convert, consolidate, sell all or substantially all of its assets or engage in a statutory share exchange unless declared advisable by its board of directors and approved by the affirmative vote of stockholders entitled | | | Common Shares. Each holder of RPT common shares is entitled to one vote per share on each matter submitted to a vote at all shareholder meetings. Subject to certain exceptions described below, each holder of RPT preferred shares is not entitled to vote on matters submitted to RPT shareholders at a meeting. If a quorum exists, the affirmative vote of not less than a majority of all the votes cast on a matter at a meeting shall be the act of the shareholders, unless the matter being approved is one upon which by express provision of law, the RPT declaration of trust or the RPT bylaws require a different vote. The RPT declaration of trust provides that, subject to the provisions of any class or series of shares then outstanding, the shareholders will be entitled to vote only on the following matters: (a) the election and removal of trustees as provided in the |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | to cast at least two-thirds of all of the votes entitled to be cast on the matter unless a lesser percentage (but not less than a majority of all of the votes entitled to be cast on the matter) is set forth in the corporation’s charter. The Kimco charter provide for approval of any of these matters by the affirmative vote of stockholders entitled to cast a majority of all the votes entitled to be cast on such matters. Maryland law also permits a Maryland corporation to transfer all or substantially all of its assets without the approval of the stockholders of the corporation to an entity if all of the equity interests of the entity are owned, directly or indirectly, by the corporation. Preferred Stock. Holders of Kimco Class L preferred stock and Kimco Class M preferred stock generally have no voting rights. However, if Kimco is in arrears on dividends on such class of Kimco preferred stock for six or more quarterly periods, whether or not consecutive, holders of such class of Kimco preferred stock (voting separately as a class with the holders of all other parity voting preferred) will be entitled to elect two additional directors to serve on the Kimco board of directors, until Kimco pays all accrued and unpaid dividends on such Kimco preferred stock to which the holders thereof are entitled. In addition, Kimco may not, without the affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of Kimco Class L preferred stock or Kimco Class M preferred stock, as applicable: (i) authorize or create, or increase the authorized or issued amount of, any class or series of equity securities issued by Kimco that rank senior to such class of Kimco preferred stock with respect to payment of dividends or the distribution of assets upon Kimco’s liquidation, dissolution or winding-up, or reclassify any of Kimco’s authorized stock into such equity securities or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such equity | | | RPT declaration of trust, (b) the amendment of the RPT declaration of trust as provided therein and the amendment of the RPT bylaws to the extent provided therein, (c) the termination of RPT as provided in the RPT declaration of trust, (d) the merger or consolidation of RPT or the sale or other disposition of substantially all of the property of RPT as provided in the RPT declaration of trust, (e) such other matters with respect to which the board of trustees has adopted a resolution declaring that a proposed action is advisable and directing that the matter be submitted to the shareholders for approval or ratification, and (f) such other matters as may be properly brought before a meeting by a shareholder pursuant to the RPT bylaws. The RPT declaration of trust provides that RPT may merge into another entity, consolidate with one or more other entities into a new entity or sell, lease, exchange or otherwise transfer all or substantially all of its property only with (i) approval of the RPT board of trustees and (ii) after notice to shareholders entitled to vote on the matter, approval by the affirmative vote of not less than two-thirds of all the votes entitled to be cast by the shareholders on the matter. Preferred Shares. Holders of RPT preferred shares generally have no voting rights. However, if RPT is in arrears on dividends on the RPT preferred shares for six or more quarterly periods, whether or not consecutive, holders of the RPT preferred shares (voting as a class with the holders of all other classes or series of parity preferred shares) will be entitled to elect two additional trustees to serve on the RPT board of trustees, until all dividend arrearages have been paid in full and the dividends on the RPT preferred shares and such other series of RPT preferred shares upon which like voting rights have been conferred and are exercisable for the then current dividend period have been fully paid or declared and a sum sufficient for the full payment |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | securities; or (ii) amend, alter or repeal the provisions of the Kimco charter, whether by merger, consolidation, or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the holders of the applicable class of Kimco preferred stock; except that (1) with respect to the occurrence of any of the events described in (ii) above, so long as the such class of Kimco preferred stock remains outstanding with the terms of such Kimco preferred stock materially unchanged or is converted into a security in another entity with the terms materially unchanged, the occurrence of such event will not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of holders of such class of Kimco preferred stock and (2) (A) any increase in the amount of the authorized shares of such class of Kimco preferred stock or the authorization or issuance of any other class or series of equity securities or (B) any increase in the number of authorized shares of such class of Kimco preferred stock or any other class or series of equity securities, in each case ranking on a parity with or junior to such class of Kimco preferred stock with respect to the payment of dividends and the distribution of assets upon Kimco’s liquidation, dissolution or winding up, will not be deemed to materially and adversely affect such rights, preferences, privileges or voting power. Excess Stock. No stockholder may vote any shares of Kimco excess stock. | | | thereof has been set aside. In addition, RPT may not, without the affirmative vote or consent of the holders of at least two-thirds of the outstanding RPT preferred shares: (i) authorize, create or issue, or increase the authorized or issued amount of, any class or series of RPT shares of beneficial interest ranking senior to the RPT preferred shares with respect to the payment of dividends or the distribution of assets upon RPT’s liquidation, dissolution or winding up, or reclassify any of RPT’s authorized shares of beneficial interest into any such class or series of RPT’s shares of beneficial interest, or create, authorize or issue any obligation or security convertible or exchangeable into or evidencing the right to purchase any such class or series of RPT’s shares of beneficial interest; or (ii) repeal, amend or otherwise change any of the provisions of the RPT declaration of trust or the articles supplementary for the RPT preferred shares (the “Articles Supplementary,” whether by merger or consolidation or otherwise, so as to adversely affect the powers, preferences or other special rights or privileges of such RPT preferred shares or the holders thereof; provided, however, that in the event of an extraordinary transaction (as defined in the Articles Supplementary), so long as RPT preferred shares remain outstanding with their terms materially unchanged, taking into account that, upon the occurrence of such an extraordinary transaction, RPT may not be the surviving entity (in which case, the RPT preferred shares may be converted into or exchanged for preferred stock or preferred shares of the surviving entity having terms materially the same as the RPT preferred shares), and, if such transaction also constitutes a fundamental change (as defined in the Articles Supplementary), the provisions relating to fundamental changes in the Articles Supplementary are complied with, the occurrence of any such extraordinary transaction will not be deemed to adversely affect such powers, preferences or other special rights or privileges of the RPT preferred shares or the holders thereof; and provided further |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | | | that (x) any increase in the amount of the authorized preferred shares or the creation or issuance of any other series of preferred shares ranking on a parity with or junior to the RPT preferred shares with respect to payment of dividends and the distribution of assets upon RPT’s voluntary or involuntary liquidation, dissolution or winding up, or (y) the increase in the amount of authorized shares of any other class or series of RPT’s shares of beneficial interest ranking on a parity with or junior to the RPT preferred shares with respect to payment of dividends and the distribution of assets upon RPT’s voluntary or involuntary liquidation, dissolution or winding up, or (z) any increase in the amount of authorized RPT preferred shares, in each case, will not require the consent of the holders of RPT preferred shares and will not be deemed to adversely affect such powers, preferences or other special rights or privileges. | ||
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Cumulative Voting | | | Holders of Kimco common stock and Kimco preferred stock do not have the right to cumulate their votes with respect to the election of directors. | | | Holders of RPT common shares and RPT preferred shares do not have the right to cumulate their votes with respect to the election of trustees. |
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Size of the Board of Directors | | | The number of directors, which must be not less than three nor more than 15, may be changed by majority vote of the entire Kimco board of directors. Currently, the Kimco board of directors consists of eight directors. | | | The RPT declaration of trust provides that the number of trustees will be set at nine, which number may be increased or decreased by a majority of the entire board of trustees. Currently, the RPT board of trustees consists of seven trustees. |
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Classified Board / Term of Directors | | | The Kimco board of directors is not classified. The directors of Kimco hold office for a term of one year and serve until their successors are elected and qualify. | | | The RPT board of trustees is not classified. The trustees of RPT hold office until the next annual meeting of shareholders following their election and serve until their successors are elected and qualified. |
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Removal of Directors | | | The MGCL provides that stockholders may remove directors with or without cause unless the corporation’s charter provides that directors may be removed only for cause. However, if a director is elected by a particular voting group, that director may be removed by the requisite vote of that voting group. | | | The MRL provides that shareholders may remove any trustee, with or without cause, by the affirmative vote of a majority of all the votes entitled to be cast generally for the election of trustees, except as otherwise provided in the MRL (including with respect to trustees elected by shareholders of any class or series that |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | Pursuant to the MGCL and the Kimco Bylaws, Kimco directors may be removed, either with or without cause, from the board of directors at any meeting of stockholders by the affirmative vote of a majority of all the votes entitled to be cast generally for the election of directors. | | | are entitled separately to elect one or more trustees) or as otherwise provided in the declaration of trust. Pursuant to the MGCL and the RPT Declaration of Trust, RPT trustees may be removed, either with or without cause, from the board of trustees at any meeting of shareholders by the affirmative vote of the holders of not less than two-thirds of the shares then outstanding and entitled to vote generally in the election of trustees. | |
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Election of Directors | | | The Kimco bylaws provide that, in the case of a non-contested election, directors must receive a majority of the votes cast in person or by proxy at any meeting at which a quorum is present. In the case of a contested election, directors are elected by a plurality of the votes cast in person or by proxy. For this purpose, if plurality voting is applicable to the election of directors at any meeting, the nominees who receive the highest number of votes cast “for,” without regard to votes cast “against,” shall be elected as directors up to the total number of directors to be elected at that meeting. If an incumbent director fails to receive the required vote for re-election, he or she must offer to resign from the Kimco board of directors. The Kimco board of directors will determine whether to accept the offered resignation after considering the recommendation of the Nominating and Corporate Governance Committee. | | | Pursuant to the RPT bylaws, a plurality of all the votes cast at a meeting of shareholders duly called and at which a quorum is present is sufficient to elect a trustee. |
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Filling Vacancies of Directors | | | Any vacancies on the Kimco board of directors by reason of death, resignation, retirement, disqualification, removal or otherwise (other than an increase in the number of directors) can be filled by a majority of the remaining Kimco board of directors, even if the remaining directors do not constitute a quorum. Any vacancies created by an increase in the number of directors may be filled by a majority of the entire Kimco board of directors. | | | The RPT bylaws provide that any vacancy (including a vacancy created by an increase in the number of trustees), other than a vacancy created as a result of the removal of any trustee by action of the shareholders, will be filled by a majority of the trustees. The RPT bylaws further provide that any trustee so elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office. |
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Charter Amendments | | | The MGCL provides that the affirmative vote of two-thirds of all outstanding stock entitled to vote or of each class if more | | | The MRL provides that, except as otherwise provided in the MRL, a proposed amendment to the declaration of |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | than one class is entitled to vote is generally required to amend a corporation’s charter. However, the MGCL permits a corporation to reduce the voting requirement in its charter to allow for the approval of an amendment to the charter by no less than a majority of the shares outstanding and entitled to be cast. The Kimco charter provide for approval of any of these matters by the affirmative vote of stockholders entitled to cast a majority of all the votes entitled to be cast on such matters. | | | trust must be approved by the shareholders by the affirmative vote of two thirds of all the votes entitled to be cast on the matter. However, the MRL permits a Maryland real estate investment trust to provide by its declaration of trust that such action may be taken or authorized on the concurrence of a greater or smaller proportion of votes, but not less than a majority of the number of votes entitled to be cast on the matter. The RPT declaration of trust provides that it may be amended from time to time (i) by a majority of the board of trustees, without shareholder approval, to increase or decrease the aggregate number of shares or the number of shares of any class that RPT has authority to issue, (ii) by two-thirds of the board of trustees, without shareholder approval, to qualify as a real estate investment trust under the Internal Revenue Code or under the MRL, and (iii) with the approval of the board of trustees and by the affirmative vote of not less than a majority of all the votes entitled to be cast by shareholders on the matter, except that Article XI of the RPT declaration of trust relating to the merger, consolidation or sale of trust property and Section 12.2 of the RPT declaration of trust relating to requirements for the termination of RPT may not be amended except by the affirmative vote of shareholders entitled to cast not less than two-thirds of all the votes entitled to be cast on such matter. | |
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Bylaw Amendments | | | The Kimco board of directors or the Kimco stockholders may adopt, alter or repeal any of the Kimco bylaws and make new bylaws by the vote of a majority of directors present at a meeting at which a quorum is present or the votes of a majority of the votes cast at a stockholder meeting at which a quorum is present. | | | The RPT bylaws provide that they may be amended, (i) by the affirmative vote of a majority of the trustees, or (ii) by the affirmative vote of a majority of the votes cast at a meeting of shareholders; provided that certain provisions of the RPT bylaws relating to meetings of shareholders, the number of trustees, vacancies on the board of trustees, the removal of trustees and the amendment of the RPT bylaws may not be amended without, the affirmative vote of a majority of the votes cast at a meeting of shareholders. |
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| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
Vote on Merger, Consolidations or Sales of Substantially all Assets | | | The MGCL provides that certain mergers shall be approved by the stockholders of a corporation by the affirmative vote of two-thirds of all the votes entitled to be cast on the merger. However, the MGCL permits a corporation in its charter to reduce the voting requirement to allow for the approval of a merger, consolidation or sale of substantially all of the corporation’s assets by the affirmative vote of no less than a majority of the shares outstanding and entitled to be cast. Kimco generally may not merge with or into or consolidate with another company, sell all or substantially all of its assets or engage in a statutory share exchange or convert unless such a transaction is declared advisable by the Kimco board of directors and approved by the affirmative vote of stockholders entitled to cast a majority of all of the votes entitled be cast on the matter. | | | The RPT declaration of trust provides that RPT may merge into another entity, consolidate with one or more other entities into a new entity or sell, lease, exchange or otherwise transfer all or substantially all of its property only with (i) approval of the RPT board of trustees and (ii) after notice to shareholders entitled to vote on the matter, approval by the shareholders by the affirmative vote of not less than two-thirds of all the votes entitled to be cast on the matter. |
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Ownership Limitations | | | For Kimco to qualify as a REIT, not more than 50% in value of Kimco’s outstanding stock may be owned, actually or constructively, by five or fewer individuals (as defined in the Code to include certain entities) during the last half of a taxable year. Kimco’s stock also must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of 12 months or during a proportionate part of a shorter taxable year. In addition, rent from related party tenants (generally, a tenant of a REIT owned, actually or constructively, 10% or more by the REIT, or a 10% owner of the REIT) is not qualifying income for purposes of the gross income tests under the Code. Subject to the exceptions specified in the Kimco charter, no holder may beneficially own, or be deemed to own by virtue of the constructive ownership provisions of the Code, more than 9.8% in value of the outstanding shares of Kimco common stock or 9.8% of the outstanding shares of Kimco Class L preferred stock or Kimco Class M preferred stock, as applicable. The Kimco articles supplementary | | | For RPT to qualify as a REIT, not more than 50% in value of RPT’s outstanding shares may be owned, actually or constructively, by five or fewer individuals (as defined in the Code to include certain entities) during the last half of a taxable year. RPT’s shares also must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of 12 months or during a proportionate part of a shorter taxable year. In addition, rent from related party tenants (generally, a tenant of a REIT owned, actually or constructively, 10% or more by the REIT, or a 10% owner of the REIT) is not qualifying income for purposes of the gross income tests under the Code. Subject to the exceptions specified in the RPT declaration of trust, no holder may beneficially own, or be deemed to own by virtue of the constructive ownership provisions of the Code, more than 9.8% (in value or number of shares, whichever is more restrictive) of the outstanding RPT shares or, in the case of the RPT preferred shares, 100% of the number of outstanding RPT preferred shares or, if fewer, the number of RPT preferred shares that, if then converted by the |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | provide that, subject to specified exceptions, no person shall beneficially own or constructively own new Kimco preferred stock in excess of (A) 100% of the number of then outstanding shares of new Kimco preferred stock or, (B) if fewer, the maximum number of shares of new Kimco preferred stock that, if then converted by the holder into Kimco common stock as provided in the Kimco articles supplementary, would make such holder or any other person the owner of a number of shares of Kimco common stock that would not exceed the common stock ownership limit in the Kimco charter. The constructive ownership rules under the Code are complex and may cause capital stock owned actually or constructively by a group of related individuals or entities or both to be deemed constructively owned by one individual or entity. As a result, the acquisition of less than the applicable ownership limitation (or the acquisition of an interest in an entity which owns, actually or constructively, Kimco capital stock) by an individual or entity could cause that individual or entity (or another individual or entity) to own constructively in excess of the applicable ownership limitation, and thus subject such capital stock to the ownership limit. | | | holder into RPT common shares as provided in the RPT Declaration of Trust, would make such holder or any other person the owner of a number of RPT common shares that would not exceed the ownership limit applicable to RPT common shares as set forth in the RPT Declaration of Trust. The constructive ownership rules under the Code are complex and may cause RPT shares owned actually or constructively by a group of related individuals or entities or both to be deemed constructively owned by one individual or entity. As a result, the acquisition of less than the applicable ownership limitation (or the acquisition of an interest in an entity which owns, actually or constructively, RPT shares) by an individual or entity could cause that individual or entity (or another individual or entity) to own constructively in excess of the applicable ownership limitation, and thus subject such shares to the ownership limit. | |
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Special Meetings of the Stockholders | | | A special meeting of Kimco stockholders may be called at any time by the chairman of the Kimco board of directors, the Kimco president, the chief executive officer, the Kimco board of directors or upon written request of stockholders entitled to cast not less than a majority of all the votes entitled to be cast on the matter to be voted on at the proposed special meeting. | | | The RPT bylaws provide that special meetings of RPT shareholders may be called by the chairman of the board of trustees, the president of RPT or one-third of the trustees or upon the written request of the holders of not less than a majority of all the votes entitled to be cast by the shareholders at such meeting. |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
Advance Notice Provisions for Stockholder Nominations and Stockholder Business Proposals | | | The Kimco bylaws provide that, with respect to an annual meeting of stockholders, the proposal of business to be considered by stockholders at the annual meeting may be made only: • pursuant to the notice of such meeting; • by or at the direction of the Kimco board of directors; or • upon timely proper notice by a stockholder who is a stockholder at the record date set by the Kimco board of directors for the meeting, the time of giving of notice and at the meeting, and is entitled to vote at the meeting. In general, notice of stockholder business for an annual meeting must be delivered not earlier than 150 days nor later than 120 days prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting, unless the annual meeting is advanced more than 30 days or delayed more than 30 days from the anniversary date, in which case notice must be delivered not earlier than 150 days prior to the date of such annual meeting and not later than the later of 120 days prior to the date of such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. | | | The RPT bylaws provide that, with respect to an annual meeting of shareholders, nominations of persons for election to the RPT board of trustees and the proposal of business to be considered by shareholders at the annual meeting may be made only: • pursuant to the notice of such meeting; • by or at the direction of the trustees; or • upon timely proper notice by a shareholder who is a shareholder of record at the time of giving of notice and at the time of the annual meeting, who is entitled to vote at the meeting and has complied with the notice procedures set forth in the RPT bylaws. In general, notice of shareholder business for an annual meeting must be delivered not earlier than 90 days nor later than 60 days prior to the first anniversary of the preceding year’s annual meeting, unless the annual meeting is advanced more than 30 days or delayed by more than 60 days from the anniversary date, in which case notice must be delivered not earlier than 90 days prior to the date of such annual meeting and not later than the later of 60 days prior to the such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. |
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Notice of Stockholder Meetings | | | Not less than 10 days nor more than 90 days before each meeting of stockholders, a notice, either in writing or by electronic transmission, shall be given to each stockholder entitled to vote at or to notice of such meeting unless such stockholder waives notice before or after the meeting. | | | Not less than 10 days nor more than 90 days before each meeting of shareholders, a notice of the meeting, either in writing or by electronic transmission, shall be given to each shareholder entitled to vote at or to notice of such meeting unless such shareholder waives notice before or after the meeting. |
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Business Combination Act | | | Under the MGCL, certain “business combinations” (which include a merger, consolidation, share exchange and certain transfers, issuances or reclassifications of equity securities) between a Maryland corporation and any person who beneficially owns 10% or more of the voting power of the corporation’s outstanding voting stock, or an affiliate or | | | Under certain provisions of the MGCL, that are applicable to Maryland real estate investment trusts certain “business combinations” (which include a merger, consolidation, share exchange and certain transfers, issuances or reclassifications of equity securities) between a Maryland corporation (which includes a real estate investment trust as defined in the MRL) |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | associate of the corporation who beneficially owned 10% or more of the voting power of the corporation’s then-outstanding stock at any time within the preceding two years, in each case referred to as an “interested stockholder,” or an affiliate thereof, are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. Thereafter, any such business combination must be recommended by the board of directors and approved by the affirmative vote of at least (1) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation and (2) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder or its affiliates or associates. The super-majority vote requirements do not apply, however, to business combinations that are approved or exempted by the board of directors prior to the time that the interested stockholder becomes an interested stockholder of if the business combination satisfies certain minimum price, form of consideration and procedural requirements. Kimco has not opted out of the business combinations provisions of the MGCL. | | | and any person who beneficially owns 10% or more of the voting power of the corporation’s outstanding voting stock, or an affiliate or associate of the corporation who beneficially owned 10% or more of the voting power of the corporation’s then-outstanding stock at any time within the preceding two years, in each case referred to as an “interested stockholder,” or an affiliate thereof, are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. Thereafter, any such business combination must be recommended by the board of directors and approved by the affirmative vote of at least (1) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation and (2) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder or its affiliates or associates. The super-majority vote requirements do not apply, however, to business combinations that are approved or exempted by the board of directors prior to the time that the interested stockholder becomes an interested stockholder or if the business combination satisfies certain minimum price, form of consideration and procedural requirements. The RPT board of trustees has adopted a resolution opting RPT out of the business combinations provisions of the MGCL. | |
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Control Share Acquisition Act | | | The MGCL contains a control share acquisition statute which, in general terms, provides that where a stockholder acquires issued and outstanding shares of a corporation's voting stock (referred to as “control shares”) within one of several specified ranges (one-tenth or more but less than one-third, one-third or more but less than a majority, or a majority or more), approval by stockholders of the control share acquisition must be obtained before the acquiring stockholder may vote the control shares. The required stockholder vote is two-thirds of all votes entitled to be cast, excluding “interested shares,” defined as shares held by the | | | The MGCL contains a control share acquisition statute applicable to Maryland real estate investment trusts which, in general terms, provides that where a stockholder acquires control shares within one of several specified ranges (one-tenth or more but less than one-third, one-third or more but less than a majority, or a majority or more), approval by stockholders of the control share acquisition must be obtained before the acquiring stockholder may vote the control shares. The required stockholder vote is two-thirds of all votes entitled to be cast, excluding “interested shares,” defined as shares held by the acquiring |
| | Rights of Kimco Stockholders | | | Rights of RPT Shareholders | |
| | acquiring person, officers of the corporation and employees who are also directors of the corporation. A corporation may, however, opt-out of the control share statute through a charter or bylaw provision, which Kimco has done pursuant to its charter. Accordingly, the MGCL control share acquisition statute does not apply to acquisitions of Kimco common stock. | | | person, officers of the corporation and employees who are also directors of the corporation. A corporation may, however, opt-out of the control share statute through a charter or bylaw provision, which RPT has done pursuant to its charter. Accordingly, the MGCL control share acquisition statute does not apply to acquisitions of RPT common shares. |
• | Annual Report on Form 10-K for the year ended December 31, 2022, filed on February 24, 2023. |
• | Quarterly Reports on Form 10-Q for the quarter ended March 31, 2023, filed on April 28, 2023, |
• | Proxy Statement on Schedule 14A filed on March 15, 2023 incorporated by reference in Kimco and Kimco OP’s Annual Report on Form 10-K for the year ended December 31, 2022 (with respect to the information contained therein that is incorporated by reference in Part III of Kimco’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022). |
• | Current Reports on Form 8-K, filed on January 3, 2023, January 4, 2023, February 2, 2023, April 27, 2023, April 27, 2023 (Film No. 23857064), August 28, 2023 (as amended), September 15, 2023, October 3, 2023, October 12, 2023 and October |
• | The description of Kimco Realty Corporation’s common stock which is contained in Exhibit 4.10 to the Annual Report on Form 10-K for the year ended December 31, 2019, filed on February 25, 2020, and as amended by any subsequent amendment or report filed for the purpose of updating the description. |
• | Annual Report on Form 10-K for the year ended December 31, 2022, filed on February 16, 2023. |
• | Quarterly Reports on Form 10-Q for the quarter ended March 31, 2023, filed on May 4, 2023, |
• | Proxy Statement on Schedule 14A filed on March 16, 2023 incorporated by reference in RPT’s Annual Report on Form 10-K for the year ended December 31, 2022 (with respect to the information contained therein that is incorporated by reference in Part III of RPT’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022). |
• | Current Reports on Form 8-K, filed on May 1, 2023 and August 28, 2023 (in each of the foregoing cases, other than documents or portions of those documents deemed to be furnished but not filed). |
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| | | | | |
Exhibit A – Form of Articles Supplementary | | | |
Exhibit B – Form of Company REIT Qualification Opinion | | | |
Exhibit C – Form of Parent Section 368 Opinion | | | |
Exhibit D – Form of Parent REIT Qualification Opinion | | | |
Exhibit E – Form of Company Section 368 Opinion | | |
Defined Terms | | | Location of Definition |
Agreement | | | Preamble |
Approved Transactions | | | Section 3.10 |
Articles of Merger | | | Section 2.3(b) |
Articles Supplementary | | | Section 7.19 |
Certificate | | | Section 3.1(a)(ii) |
Claim | | | Section 7.5(a) |
Claim Expenses | | | Section 7.5(a) |
Closing | | | Section 2.2 |
Closing Date | | | Section 2.2 |
Common Share Merger Consideration | | | Section 3.1(a)(ii) |
Company | | | Preamble |
Company Acquisition Proposal | | | Section 7.3(h)(i) |
Company Adverse Recommendation Change | | | Section 7.3(b) |
Company Alternative Acquisition Agreement | | | Section 7.3(a) |
Company Benefit Plans | | | Section 4.13(a) |
Company Board | | | Recitals |
Company Board Recommendation | | | Section 4.4(b) |
Defined Terms | | | Location of Definition |
Company Capitalization Date | | | Section 4.3(a) |
Company Common Shares | | | Recitals |
Company Disclosure Letter | | | Article 4 |
Company Employees | | | Section 4.13(f) |
Company Insurance Policies | | | Section 4.19 |
Company Material Contract | | | Section 4.18(b) |
Company Merger | | | Recitals |
Company Merger Certificates | | | Section 2.3(b) |
Company Merger Effective Time | | | Section 2.3(b) |
Company Notice Period | | | Section 7.3(e) |
Company Parties | | | Preamble |
Company Permits | | | Section 4.6(a) |
Company Preferred Shares | | | Section 4.3(a) |
Company Property Sale | | | Section 7.21 |
Company Qualified DC Plan | | | Section 7.17(c) |
Company Related Party Agreement | | | Section 4.25 |
Company Relevant Partnership Interests | | | Section 4.12(i) |
Company SEC Documents | | | Section 4.7(a) |
Company Shareholder Approval | | | Section 4.21 |
Company Subsidiary Partnership | | | Section 4.12(i) |
Company Superior Proposal | | | Section 7.3(h)(ii) |
Company Superior Proposal Termination | | | Section 7.3(d) |
Company Tax Protection Agreement | | | Section 4.12(i) |
Company Terminating Breach | | | Section 9.1(c)(i) |
Company Termination Fee | | | Section 9.3(d) |
Company Third Party | | | Section 4.17(i) |
Company Title Insurance Policy | | | Section 4.17(k) |
Continuing Employees | | | Section 7.17(a) |
Contribution | | | Recitals |
Contribution Effective Time | | | Section 2.3(c) |
Debt Transaction | | | Section 7.15(b) |
Debt Transaction Documents | | | Section 7.15(b) |
DLLCA | | | Recitals |
DRULPA | | | Recitals |
DSOS | | | Section 2.3(a) |
Enforcement Expenses | | | Section 9.3(b) |
Exchange Agent | | | Section 3.4(a) |
Exchange Fund | | | Section 3.4(b) |
Exchange Ratio | | | Section 3.1(a)(ii) |
Form S-4 | | | Section 4.5(b) |
Fractional Share Consideration | | | Section 3.1(a)(ii) |
Indemnified Parties | | | Section 7.5(a) |
Indemnity Exceptions | | | Section 7.15(a) |
Interim Period | | | Section 6.1(a) |
Letter of Transmittal | | | Section 3.4(d)(i) |
Listing | | | Section 7.8 |
Maryland Courts | | | Section 10.9 |
Material Company Leases | | | Section 4.17(g) |
Maximum Amount | | | Section 7.5(c) |
Mergers | | | Recitals |
Defined Terms | | | Location of Definition |
MRL | | | Recitals |
OP Unit Form S-4 | | | Section 7.1(a) |
Outside Date | | | Section 9.1(b)(i) |
Parent | | | Preamble |
Parent Benefit Plan | | | Section 5.12(b) |
Parent Board | | | Recitals |
Parent Capitalization Date | | | Section 5.3(a) |
Parent Class L Excess Preferred Stock | | | Section 5.3(a) |
Parent Class L Preferred Stock | | | Section 5.3(a) |
Parent Class M Excess Preferred Stock | | | Section 5.3(a) |
Parent Class M Preferred Stock | | | Section 5.3(a) |
Parent Disclosure Letter | | | Article 5 |
Parent Insurance Policies | | | Section 5.18 |
Parent Merger Sub | | | Preamble |
Parent OP | | | Preamble |
Parent OP Merger Sub | | | Recitals |
Parent Parties | | | Preamble |
Parent Partnership | | | Section 5.11(i) |
Parent Preferred Stock | | | Section 5.3(a) |
Parent Relevant Partnership Interests | | | Section 5.11(i) |
Parent SEC Documents | | | Section 5.7(a) |
Parent Tax Protection Agreement | | | Section 5.11(i) |
Parent Terminating Breach | | | Section 9.1(d)(i) |
Partnership | | | Preamble |
Partnership Merger | | | Recitals |
Partnership Merger Certificate | | | Section 2.3(a) |
Partnership Merger Consideration | | | Section 3.2(a) |
Partnership Merger Effective Time | | | Section 2.3(a) |
Partnership OP Units | | | Recitals |
Partnership Preferred OP Units | | | Section 4.3(b) |
Party(ies) | | | Preamble |
Payoff Indebtedness | | | Section 7.15(d) |
Payoff Letters | | | Section 7.15(d) |
Pdf | | | Section 10.4 |
Permitted REIT Dividend | | | Section 6.1(b)(iii) |
Preferred Share Merger Consideration | | | Section 3.1(a)(iii) |
Qualified REIT Subsidiary | | | Section 4.12(d) |
REIT | | | Section 4.12(b) |
REIT Requirements | | | Section 9.3(d) |
SDAT | | | Section 2.3(b) |
SOX Act | | | Section 4.7(b) |
Takeover Statutes | | | Section 4.24 |
Taxable REIT Subsidiary | | | Section 4.12(d) |
Transfer Taxes | | | Section 9.5 |
| | (a) | | | if to the Company to: | ||||
| | ||||||||
| | | | RPT Realty | |||||
| | | | 19 W 44th Street, Suite 1002 | |||||
| | | | New York, NY 10036 | |||||
| | | | Attention: | | | Brian Harper | ||
| | | | | | Heather Ohlberg | |||
| | | | Email: | | | bharper@rptrealty.com | ||
| | | | | | hohlberg@rptrealty.com | |||
| | ||||||||
| | | | with a copy (which shall not constitute notice) to: | |||||
| | | | Goodwin Procter LLP | |||||
| | | | 100 Northern Avenue | |||||
| | | | Boston, MA 02210 | |||||
| | | | Attn: | | | Mark S. Opper | ||
| | | | | | Blake Liggio | |||
| | | | Email: | | | mopper@goodwinlaw.com | ||
| | | | | | bliggio@goodwinlaw.com | |||
| | ||||||||
| | (b) | | | if to Parent to: | ||||
| | ||||||||
| | | | Kimco Realty Corporation | |||||
| | | | 500 N. Broadway, Suite 201 | |||||
| | | | Jericho, NY 11753 | |||||
| | | | Attention: | | | Conor C. Flynn | ||
| | | | | | Bruce M. Rubenstein | |||
| | | | Email: | | | CFlynn@kimcorealty.com | ||
| | | | | | BRubenstein@kimcorealty.com | |||
| | ||||||||
| | | | with a copy (which shall not constitute notice) to: | |||||
| | | | Wachtell, Lipton, Rosen & Katz | |||||
| | | | 51 West 52nd Street | |||||
| | | | New York, NY 10019 | |||||
| | | | Attention: | | | David E. Shapiro | ||
| | | | | | Steven R. Green | |||
| | | | Fax No.: | | | (212) 403-2000 | ||
| | | | Email: | | | DEShapiro@wlrk.com | ||
| | | | | | SRGreen@wlrk.com |
| | KIMCO REALTY CORPORATION | |||||||
| | | | | | ||||
| | By: | | | /s/ Conor C. Flynn | ||||
| | | | Name: | | | Conor C. Flynn | ||
| | | | Title: | | | Chief Executive Officer | ||
| | | | | | ||||
| | KIMCO REALTY OP, LLC | |||||||
| | | | | | ||||
| | By: | | | Kimco Realty Corporation, | ||||
| | | | its managing member | |||||
| | | | | | ||||
| | By: | | | /s/ Conor C. Flynn | ||||
| | | | Name: | | | Conor C. Flynn | ||
| | | | Title: | | | Chief Executive Officer | ||
| | | | | | ||||
| | TARPON ACQUISITION SUB, LLC | |||||||
| | | | | | ||||
| | By: | | | Kimco Realty Corporation, | ||||
| | | | its sole member | |||||
| | | | | | ||||
| | By: | | | /s/ Conor C. Flynn | ||||
| | | | Name: | | | Conor C. Flynn | ||
| | | | Title: | | | Chief Executive Officer | ||
| | | | | | ||||
| | TARPON OP ACQUISITION SUB, LLC | |||||||
| | | | | | ||||
| | By: | | | Kimco Realty OP, LLC, | ||||
| | | | its sole member | |||||
| | | | | | ||||
| | By: | | | Kimco Realty Corporation, | ||||
| | | | its managing member | |||||
| | | | | | ||||
| | By: | | | /s/ Conor C. Flynn | ||||
| | | | Name: | | | Conor C. Flynn | ||
| | | | Title: | | | Chief Executive Officer |
| | RPT REALTY, a Maryland real estate investment trust | |||||||
| | | | | | ||||
| | By: | | | /s/ Brian L. Harper | ||||
| | | | Name: | | | Brian L. Harper | ||
| | | | Title: | | | President and Chief Executive Officer | ||
| | | | | | ||||
| | RPT REALTY, L.P., a Delaware limited partnership | |||||||
| | | | | | ||||
| | By: | | | RPT Realty, a Maryland real estate investment trust, its general partner | ||||
| | | | | | ||||
| | By: | | | /s/ Brian L. Harper | ||||
| | | | Name: | | | Brian L. Harper | ||
| | | | Title: | | | President and Chief Executive Officer |
1 | To be equal to the Conversion Rate applicable to the RPT Series D Preferred Shares as of the closing, multiplied by (x) the Exchange Ratio and (y) 1,000. The number above is calculated based on the Conversion Rate as of the date of the Merger Agreement. |
2 | The closing date. |
3 | The last dividend payment date prior to the closing of the Company Merger. |
4 | The first dividend payment date following the closing of the Company Merger. |
5 | The last dividend payment date prior to the closing of the Company Merger. |
6 | The last dividend payment date prior to the closing of the Company Merger. |
CR1 = CR0 × | | | OS1 |
| OS0 |
CR1 = CR0 × | | | OS0+X |
| OS0+Y |
CR1 = CR0 × | | | SP0 |
| SP0 - FMV |
CR1 = CR0 × | | | FMV + MP0 |
| MP0 |
CR1 = CR0 × | | | SP0 |
| SP0 - C |
7 | To be equal to $0.1633 divided by the Exchange Ratio. |
CR1 = CR0 × | | | AC + (SP1 X OS1) |
| OS0 - SP1 |
Share Price ($)9 | |||||||||||||||||||||
$[18.93] | | | $[20.40] | | | $[21.16] | | | $[22.66] | | | $[24.17] | | | $[25.69] | | | $[27.19] | | | $[30.22] |
[344.4] | | | [309.5] | | | [280.6] | | | [227.1] | | | [178.3] | | | [130.4] | | | [77.3] | | | [0] |
8 | To be equal to the Conversion Rate applicable to this provision of the RPT Series D Preferred Shares as of the closing, multiplied by (x) the Exchange Ratio and (y) 1,000. The number above is calculated based on the Conversion Rate as of the date of the Merger Agreement. -1 |
9 | Share prices in table to be equal to the applicable share prices in the make-whole table of the Series D Preferred Shares as of the closing, divided by the Exchange Ratio. The Make-Whole Premiums in the table to be equal to the applicable Make-Whole Premiums in the make-whole table of the Series D Preferred Shares as of the closing, multiplied by (x) the Exchange Ratio and (y) 1,000. The numbers above are calculated based on the make-whole table of the Series D Preferred Shares as of the date of the Merger Agreement. |
10 | To be equal to the Conversion Rate applicable to this provision of the RPT Series D Preferred Shares as of the closing, multiplied by (x) the Exchange Ratio and (y) 1,000. The number above is calculated based on the Conversion Rate as of the date of the Merger Agreement. |
11 | To be equal to the share price applicable to this provision of the RPT Series D Preferred Shares as of the closing, divided by the Exchange Ratio. The number above is calculated based on the applicable price as of the date of the Merger Agreement. |
12 | To be equal to the share price applicable to this provision of the RPT Series D Preferred Shares as of the closing, divided by the Exchange Ratio. The number above is calculated based on the applicable price as of the date of the Merger Agreement. |
ATTEST: | | | KIMCO REALTY CORPORATION | |||||||||
| | | | | | | | |||||
| | By: | | | | | (SEAL) | |||||
Name: | | | | | Name: | | | Glenn G. Cohen | | | ||
Title: | | | | | Title: | | | Executive Vice President, Chief Financial Officer and Treasurer | | |
1 | Certificate(s) (or evidence of loss, theft or destruction thereof) to be converted are received by the Corporation or its Transfer Agent. |
2 | Address to which shares of Common Stock and any other payments or certificates shall be sent by the Corporation. |
| | CUSIP # [•] | |
| | SEE REVERSE FOR | |
| | CERTAIN DEFINITIONS, | |
| | IMPORTANT NOTICE ON | |
| | TRANSFER | |
| | RESTRICTIONS AND | |
| | OTHER INFORMATION |
By | | | | | | | |||
| | Authorized Signature | | | Secretary | | | President |
3 | Remove if not a global security. |
TEN COM | | | — | | | as tenants in common | | | UNIF GIFT MIN ACT | | | |
TEN ENT | | | — | | | as tenants by the entireties | | | | | (Cust.) (Minor) | |
JT TEN | | | — | | | as joint tenants with right of survivorship and not as tenants in common | | | | | under Uniform Gifts to Minors Act | |
| | | | | | | | (State) |
Dated | | | | | | | |||
| | | | | | ||||
| |||||||||
| | | | (Sign here) | | | |||
| | | | | |||||
| | | | NOTICE: | | | THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. |
(i) | RPT will be merged with and into Parent Merger Sub (the “Company Merger”) and (a) each outstanding Common Share of Beneficial Interest, par value $0.01 per share, of RPT (“RPT Common Shares”), other than shares of RPT Common Shares owned by any Parent Party or any subsidiary of any Parent Party or RPT (such holders, collectively, “Excluded Holders”), will be converted into the right to receive 0.6049 of a share of the common stock, par value $0.01 per share, of Parent (“Parent Common Stock”) (the “Merger Consideration”), and (b) each share of 7.25% Series D Cumulative Convertible Perpetual Preferred Shares of Beneficial Interest, par value $0.01 per share, of RPT will be converted into the right to receive the Preferred Share Merger Consideration (as defined in the Agreement); and |
(ii) | Parent OP Merger Sub will be merged with and into the Partnership and each outstanding limited partnership interest of the Partnership, other than such units owned by RPT, will be converted into the right to receive the Partnership Merger Consideration (as defined in the Agreement). |
(i) | Reviewed the financial terms and conditions of a draft, dated August 27, 2023, of the Agreement; |
(ii) | Reviewed certain publicly available historical business and financial information relating to RPT; |
(iii) | Reviewed various financial forecasts and other data provided to us by RPT relating to the business of RPT; |
(iv) | Held discussions with members of the senior management of RPT with respect to the business and prospects of RPT; |
(v) | Reviewed public information with respect to certain other companies in lines of business we believe to be generally relevant in evaluating the business of RPT; |
(vi) | Reviewed the financial terms of certain business combinations involving companies in lines of business we believe to be generally relevant in evaluating the business of RPT; |
(vii) | Reviewed historical stock prices and trading volumes of RPT Common Shares and Parent Common Stock; and |
(viii) | Conducted such other financial studies, analyses and investigations as we deemed appropriate. |
| | Very truly yours, LAZARD FRERES & CO. LLC | ||||
| | By | | | /s/ Phillip T. Summers | |
| | | | Phillip T. Summers Managing Director |
Item 20. | Indemnification of Directors and Officers |
Item 21. | Exhibits and Financial Statement Schedules |
Exhibit Number | | | Description |
2.1† | | | Agreement and Plan of Merger, dated as of August 28, 2023, by and among Kimco Realty Corporation, Kimco Realty OP, LLC, Tarpon Acquisition Sub, LLC, Tarpon OP Acquisition Sub, LLC, RPT Realty and RPT Realty, L.P. (included as Annex A to the proxy statement/prospectus forming a part of this registration statement and incorporated herein by reference). |
| | ||
| | Articles of Amendment and Restatement of Kimco Realty Corporation (incorporated by reference to Exhibit 3.1 to Kimco’s Form 8-K12B filed on January 3, 2023). | |
| | ||
| | Amended and Restated Bylaws of Kimco Realty Corporation (incorporated by reference to Exhibit 3.1 to Kimco’s Form 8-K12B filed on February 2, 2023). | |
| | ||
| | Articles of Merger (incorporated by reference to Exhibit 3.5 to Kimco’s Form 8-K12B filed on January 3, 2023). | |
| | ||
| | Form of Articles Supplementary of Kimco Realty Corporation with respect to the Class N Preferred Stock of Kimco Realty Corporation (included as Annex B to the proxy statement/prospectus forming a part of this registration statement and incorporated herein by reference). | |
| | ||
| | Form of Deposit Agreement with respect to the Class N Preferred Stock of Kimco Realty Corporation. | |
| | ||
| | Opinion of Venable LLP. | |
| | ||
| | Opinion of Wachtell, Lipton, Rosen & Katz, as to certain material U.S. federal tax matters. | |
| | ||
| | Opinion of Goodwin Procter LLP, as to certain material U.S. federal tax matters. | |
| | ||
| | Opinion of Latham & Watkins LLP, as to the qualification of Kimco Realty Corporation as a real estate investment trust. | |
| | ||
| | Opinion of Goodwin Procter LLP, as to the qualification of RPT Realty as a real estate investment trust. | |
| | ||
| | Consent of Venable LLP (included in the opinion filed as Exhibit 5.1 hereto and incorporated herein by reference). | |
| | ||
| | Consent of Wachtell, Lipton, Rosen & Katz (included in the opinion filed as Exhibit 8.1 hereto and incorporated herein by reference). | |
| | ||
| | Consent of Goodwin Procter LLP (included in the opinion filed as Exhibit 8.2 hereto and incorporated herein by reference). | |
| | ||
| | Consent of Independent Registered Public Accounting Firm of Kimco Realty Corporation, PricewaterhouseCoopers LLP. | |
| | ||
| | Consent of Independent Registered Public Accounting Firm of RPT Realty, Grant Thornton LLP. | |
| | ||
| | Consent of Latham & Watkins LLP (included in the opinion filed as Exhibit 8.3 hereto and incorporated herein by reference). | |
| | ||
| | Consent of Goodwin Procter LLP (included in the opinion filed as Exhibit 8.4 hereto and incorporated herein by reference). | |
| |
Exhibit Number | | | Description |
| | Power of Attorney (included in signature page). | |
| | ||
| | Consent of Lazard Frères & Co. LLC. | |
| | ||
| | Form of Proxy Card of RPT Realty. | |
| | ||
| | Filing Fee Table. |
† | Certain Schedules (or similar attachments) have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Kimco hereby undertakes to furnish supplemental copies of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission; provided, that Kimco may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any schedules so furnished. |
* |
Item 22. | Undertakings |
(a) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(1) | to include any prospectus required by section 10(a)(3) of the Securities Act; |
(2) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(3) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(b) | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(c) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
(d) | that, for the purpose of determining liability under the Securities Act to any purchaser: |
(1) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(2) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the |
(e) | that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(1) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(2) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(3) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(4) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(f) | that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(g) | that, prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form; |
(h) | that, every prospectus that (i) is filed pursuant to paragraph (g) immediately preceding, or (ii) purports to meet the requirements of section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to this registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(i) | insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the |
(j) | to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request; and |
(k) | to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective. |
| | KIMCO REALTY CORPORATION | |||||||
| | | | | | ||||
| | By: | | | /s/ Glenn G. Cohen | ||||
| | | | Name: | | | Glenn G. Cohen | ||
| | | | Title: | | | Chief Financial Officer |
Signature | | | Title | | | Date |
| | | | |||
| | Chief Executive Officer and Director (Principal Executive Officer) | | | ||
Conor C. Flynn | | |||||
| | | | |||
/s/ Glenn G. Cohen | | | Executive Vice President – Chief Financial Officer and Treasurer (Principal Financial Officer) | | | |
Glenn G. Cohen | | |||||
| | | | |||
| | Vice President – Chief Accounting Officer (Principal Accounting Officer) | | | ||
Paul Westbrook | | |||||
| | | | |||
| | Executive Chairman of the Board | | | ||
Milton Cooper | | |||||
| | | | |||
| | Director | | | ||
Philip Coviello | | |||||
| | | | |||
| | Director | | | ||
Frank Lourenso | | |||||
| | | | |||
| | Director | | | ||
Henry Moniz | | |||||
| | | | |||
| | Director | | | ||
Mary Hogan Preusse | | |||||
| | | | |||
| | Director | | | ||
Valerie Richardson | | |||||
| | | | |||
| | Director | | | ||
Richard Saltzman | |
*By: | | | /s/ Glenn G. Cohen | | | ||||
| | Name: | | | Glenn G. Cohen | | | ||
| | Title: | | | Attorney-in-Fact | | |