DEFM14A 1 nt10025004x5_defm14a.htm DEFM14A

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant ☒
Filed by a Party other than the Registrant
Check the appropriate box:
Preliminary Proxy Statement
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
Definitive Proxy Statement
Definitive Additional Materials
Soliciting Material Pursuant to §240.14a-12
Weingarten Realty Investors
(Name of Registrant as Specified in Its Charter)
 
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check appropriate box):
No fee required
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
 
(1)
Title of each class of securities to which transaction applies:
 
 
 
 
(2)
Aggregate number of securities to which transaction applies:
 
 
 
 
(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
 
 
 
 
(4)
Proposed maximum aggregate value of transaction:
 
 
 
 
(5)
Total fee paid:
 
 
 
Fee paid previously with preliminary materials:
Check box if any part of the fee is offset as provided by Exchange Act Rule 240.0-11 and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
 
(1)
Amount Previously Paid:
 
 
 
 
(2)
Form, Schedule or Registration Statement No.:
 
 
 
 
(3)
Filing Party:
 
 
 
 
(4)
Date Filed:
 
 
 

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Filed Pursuant to Rule 424(b)(3)
Registration Nos. 333-256587


TO THE STOCKHOLDERS OF KIMCO REALTY CORPORATION AND
THE SHAREHOLDERS OF WEINGARTEN REALTY INVESTORS
MERGER PROPOSED—YOUR VOTE IS VERY IMPORTANT
June 25, 2021
Dear Stockholders of Kimco Realty Corporation and Shareholders of Weingarten Realty Investors:
The board of directors of Kimco Realty Corporation, a Maryland corporation (which we refer to as “Kimco”), and the board of trust managers of Weingarten Realty Investors, a Texas real estate investment trust (which we refer to as “WRI”), have each approved an agreement and plan of merger, dated as of April 15, 2021 (which we refer to, as it may be amended or supplemented from time to time, as the “Merger Agreement”), by and between WRI and Kimco. Pursuant to the Merger Agreement, Kimco and WRI will combine in a cash-and-stock transaction. The transaction brings together two industry-leading retail real estate platforms with highly complementary portfolios, creating the preeminent open-air shopping center and mixed-use real estate owner in the country.
The combination of Kimco and WRI will be accomplished through the merger of WRI with and into Kimco (which we refer to as the “Merger”), with Kimco continuing as the surviving corporation of the Merger. In connection with the Merger, each WRI common shareholder will have the right to receive 1.408 (which we refer to as the “exchange ratio”) newly issued shares of common stock, par value $0.01 per share, of Kimco (which we refer to as “Kimco common stock”) plus $2.89 in cash for each common share of beneficial interest, par value $0.03 per share, of WRI (which we refer to as the “WRI common shares”), that they own immediately prior to the effective time of the Merger, subject to customary anti-dilution adjustments and any adjustment that may be made pursuant to the terms of the Merger Agreement in certain circumstances relating to a special pre-closing distribution by WRI, and with cash paid in lieu of fractional shares. The exchange ratio is fixed and will not be adjusted to reflect stock price changes prior to the closing of the Merger. Kimco common stock and WRI common shares are each traded on the New York Stock Exchange (which we refer to as the “NYSE”) under the ticker symbols “KIM” and “WRI,” respectively. Based on the closing price of Kimco common stock on the NYSE on April 14, 2021, the last trading day before public announcement of the Merger, the Merger consideration represented approximately $30.32 for each WRI common share. Based on the closing price of Kimco common stock on the NYSE of $21.25 on June 16, 2021, the latest practicable date before the date of this joint proxy statement/prospectus, the Merger consideration represented approximately $32.81 for each WRI common share. The value of the consideration will fluctuate with changes in the market prices of Kimco common stock and WRI common shares. We urge you to obtain current market quotations of Kimco common stock and WRI common shares.
Based upon the number of outstanding shares on the record date of June 21, 2021 for each of the Kimco special meeting and the WRI special meeting, we anticipate that Kimco will issue approximately 179,722,213 shares of Kimco common stock to WRI shareholders in the Merger.
Upon completion of the Merger, we estimate that legacy Kimco common stockholders will own approximately 71% of the Kimco common stock and legacy WRI common shareholders will own approximately 29% of the Kimco common stock.
Kimco and WRI will each hold special meetings of their respective stockholders on August 3, 2021 in connection with the Merger.
At the special meeting of Kimco stockholders, Kimco stockholders will be asked to consider and vote on (i) a proposal to approve the Merger, on the terms and subject to the conditions set forth in the Merger Agreement (which we refer to as the “Kimco Merger Proposal”) and (ii) a proposal to approve the adjournment of the Kimco special meeting, if necessary or appropriate, to solicit additional proxies in favor of the Kimco Merger Proposal if there are insufficient votes at the time of such adjournment to approve the Kimco Merger Proposal (which we refer to as the “Kimco Adjournment Proposal”). Holders of Kimco common stock on the record date for the Kimco special meeting are entitled to vote on the Kimco Merger Proposal and the Kimco Adjournment Proposal.
At the special meeting of WRI shareholders, WRI shareholders will be asked to consider and vote on (i) a proposal to approve the Merger Agreement (which we refer to as the “WRI Merger Proposal”), (ii) a proposal to approve, by advisory (nonbinding) vote, the compensation that may be paid or become payable to the named executive officers of WRI in connection with the Merger (which we refer to as the “WRI Compensation Proposal”) and (iii) a proposal to approve the adjournment of the WRI special meeting, if necessary or appropriate, to solicit additional proxies in favor of the WRI Merger Proposal, if there are insufficient votes at the time of such adjournment to approve the WRI Merger Proposal (which we refer to as the “WRI Adjournment Proposal”). Holders of WRI common shares on the record date for the WRI special meeting are entitled to vote on the WRI Merger Proposal, the WRI Compensation Proposal and the WRI Adjournment Proposal.
Your vote is very important, regardless of the number of shares you own. The record dates for determining the stockholders and shareholders entitled to receive notice of, and to vote at, the special meetings are June 21, 2021, for each of the Kimco special meeting and the WRI special meeting. The Merger cannot be completed without the approval of the Kimco Merger Proposal by Kimco common stockholders and approval of the WRI Merger Proposal by WRI shareholders. We urge you to read this joint proxy statement/prospectus carefully. The obligations of Kimco and WRI to complete the Merger are subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement. More information about Kimco, WRI, the special meetings, the Merger Agreement and the transactions contemplated thereby, including the Merger, is included in this joint proxy statement/prospectus. You should also consider carefully the risks that are described in the “Risk Factors” section, beginning on page 18.
Whether or not you plan to attend the Kimco special meeting or the WRI special meeting, please submit your proxy as soon as possible to make sure that your shares of Kimco common stock or WRI common shares are represented at the applicable meeting.
The Kimco board of directors unanimously recommends that Kimco stockholders vote “FOR” the Kimco Merger Proposal, which approval is necessary to complete the Merger and “FOR” the Kimco Adjournment Proposal.
The WRI board of trust managers unanimously recommends that WRI shareholders vote “FOR” the WRI Merger Proposal, which approval is necessary to complete the Merger, “FOR” the WRI Compensation Proposal and “FOR” the WRI Adjournment Proposal.
We join our respective boards in their recommendation and look forward to the successful combination of Kimco and WRI.
Sincerely,
Sincerely,



CONOR C. FLYNN
Chief Executive Officer
Kimco Realty Corporation
ANDREW M. ALEXANDER
Chairman of the Board, President and Chief Executive Officer
Weingarten Realty Investors
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued under this joint proxy statement/prospectus or determined that this joint proxy statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
This joint proxy statement/prospectus is dated June 25, 2021 and is first being mailed to the stockholders of Kimco and shareholders of WRI on or about June 29, 2021.

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Kimco Realty Corporation
500 North Broadway, Suite 201
Jericho, New York 11753
(516) 869-9000
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held On August 3, 2021
Dear Stockholders of Kimco Realty Corporation:
We are pleased to invite you to attend a special meeting of stockholders of Kimco Realty Corporation, a Maryland corporation (which we refer to as “Kimco”). The meeting will be held virtually on August 3, 2021, at www.virtualshareholdermeeting.com/KIM2021SM, at 10:00 a.m. local time (which we refer to as the “Kimco special meeting”), to consider and vote upon the following matters:
a proposal to approve the merger (which we refer to as the “Merger”) of Weingarten Realty Investors, a Texas real estate investment trust (which we refer to as “WRI”), with and into Kimco, with Kimco continuing as the surviving corporation of the Merger, on the terms and subject to the conditions of the agreement and plan of merger, dated as of April 15, 2021 (which we refer to, as it may be amended or supplemented from time to time, as the “Merger Agreement”), by and between WRI and Kimco, as more fully described in the attached joint proxy statement/prospectus (which we refer to as the “Kimco Merger Proposal”); and
a proposal to approve the adjournment of the Kimco special meeting, if necessary or appropriate, to solicit additional proxies in favor of the Kimco Merger Proposal if there are insufficient votes at the time of such adjournment to approve such proposal (which we refer to as the “Kimco Adjournment Proposal”).
The approval by Kimco stockholders of the Kimco Merger Proposal is a condition to the completion of the Merger and the other transactions contemplated by the Merger Agreement.
Please refer to the attached joint proxy statement/prospectus for further information with respect to the business to be transacted at the Kimco special meeting.
Holders of record of shares of Kimco common stock at the close of business on June 21, 2021 are entitled to notice of, and to vote at, the Kimco special meeting and any adjournments or postponements of the Kimco special meeting.
Approval of the Kimco Merger Proposal requires the affirmative vote of the holders of Kimco common stock entitled to cast a majority of all the votes entitled to be cast on the Kimco Merger Proposal at the Kimco special meeting. Approval of the Kimco Adjournment Proposal requires the affirmative vote of the majority of the votes cast at the Kimco special meeting. If a quorum is not present, the chair of the Kimco special meeting may adjourn the meeting.
The Kimco board of directors unanimously recommends that Kimco stockholders vote “FOR” the Kimco Merger Proposal, which approval is necessary to complete the Merger, and “FOR” the Kimco Adjournment Proposal.
Your vote is important. Whether or not you expect to attend the Kimco special meeting, we urge you to vote your shares as promptly as possible by: (1) accessing the Internet website specified on your proxy card; (2) calling the toll-free number specified on your proxy card; or (3) signing and returning the enclosed proxy card in the postage-paid envelope provided, so that your shares may be represented and voted at the Kimco special meeting. If your shares are held in the name of a bank, broker or nominee, please follow the instructions on the voting instruction card furnished by the record holder. In lieu of receiving a proxy card, participants in certain benefit plans of Kimco have been furnished with voting instruction cards, which are described in greater detail in the accompanying joint proxy statement/prospectus.
 
By Order of the Board of Directors,
 


 
Bruce Rubenstein
 
Executive Vice President, General Counsel
and Corporate Secretary
June 25, 2021
Jericho, New York

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Weingarten Realty Investors
2600 Citadel Plaza Drive, Suite 125
Houston, Texas 77008
(713) 866-6000
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To Be Held On August 3, 2021
Dear Shareholders of Weingarten Realty Investors:
We are pleased to invite you to attend a special meeting of shareholders of Weingarten Realty Investors, a Texas real estate investment trust (which we refer to as “WRI”). The meeting will be held on August 3, 2021, at 2600 Citadel Plaza Drive, Houston, Texas 77008, at 9:00 a.m. local time (which we refer to as the “WRI special meeting”), to consider and vote upon the following matters:
a proposal to approve the agreement and plan of merger, dated as of April 15, 2021 (which we refer to, as it may be amended or supplemented from time to time, as the “Merger Agreement”), by and between WRI and Kimco Realty Corporation, a Maryland corporation (which we refer to as “Kimco”), pursuant to which WRI will merge with and into Kimco (which we refer to as the “Merger”), with Kimco continuing as the surviving corporation of the Merger, as more fully described in the attached joint proxy statement/prospectus (which we refer to as the “WRI Merger Proposal”);
a proposal to approve, by advisory (nonbinding) vote, the compensation that may be paid or become payable to the named executive officers of WRI in connection with the Merger (which we refer to as the “WRI Compensation Proposal”); and
a proposal to approve the adjournment of the WRI special meeting, if necessary or appropriate, to solicit additional proxies in favor of the WRI Merger Proposal, if there are insufficient votes at the time of such adjournment to approve such proposal (which we refer to as the “WRI Adjournment Proposal”).
The approval by WRI shareholders of the WRI Merger Proposal is a condition to the completion of the Merger and the other transactions contemplated by the Merger Agreement.
Please refer to the attached joint proxy statement/prospectus for further information with respect to the business to be transacted at the WRI special meeting.
Holders of record of WRI common shares, par value $0.03 per share (which we refer to as “WRI common shares”), at the close of business on June 21, 2021 are entitled to notice of, and to vote on, all proposals at the WRI special meeting and any adjournments or postponements of the WRI special meeting.
Approval of the WRI Merger Proposal requires the affirmative vote of the holders of two-thirds of the outstanding WRI common shares entitled to vote on the WRI Merger Proposal at the WRI special meeting. Approval of the WRI Compensation Proposal requires the affirmative vote of the holders of the majority of the WRI common shares entitled to vote, present or represented by proxy, at the WRI special meeting; however, such vote is advisory (nonbinding) only. Approval of the WRI Adjournment Proposal requires the affirmative vote of the holders of the majority of the WRI common shares entitled to vote, present or represented by proxy, at the WRI special meeting. If a quorum is not present, the holders of a majority of WRI common shares entitled to vote, present in person or by proxy at the WRI special meeting may adjourn the meeting.
The WRI board of trust managers unanimously recommends that WRI shareholders vote “FOR” the WRI Merger Proposal, which approval is necessary to complete the Merger, “FOR” the WRI Compensation Proposal and “FOR” the WRI Adjournment Proposal.
Your vote is important. Whether or not you expect to attend the WRI special meeting in person, we urge you to vote your shares as promptly as possible by: (1) accessing the Internet website specified on your proxy card; (2) calling the toll-free number specified on your proxy card; or (3) signing and returning the enclosed proxy card in the postage-paid envelope provided, so that your shares may be represented and voted at the WRI special meeting. If your shares are held in the name of a bank, broker or nominee, please follow the instructions on the voting instruction card furnished by the record holder.
 
By Order of the Board of Trust Managers,
 


 
Joe D. Shafer
 
Senior Vice President and Secretary
June 25, 2021
Houston, Texas

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ADDITIONAL INFORMATION
This joint proxy statement/prospectus incorporates by reference important business and financial information about Kimco and WRI from other documents that are not included in or delivered with this joint proxy statement/prospectus. This information is available to you without charge upon your request. You can obtain the documents incorporated by reference into this joint proxy statement/prospectus by requesting them in writing or by telephone from the appropriate company at the following addresses and telephone numbers:
Kimco Realty Corporation
500 North Broadway, Suite 201
Jericho, New York 11753
(516) 869-9000
Weingarten Realty Investors
2600 Citadel Plaza Drive, Suite 125
Houston, Texas 77008
(713) 866-6000
Attn.: Investor Relations
Attn.: Investor Relations
 
 
or
or
 
 
Alliance Advisors, LLC
200 Broadacres Drive
Bloomfield, New Jersey 07003
(855) 325-6670
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
(888) 750-5884 (Toll-free from the U.S. and Canada)
or
(412) 232-3651 (from other locations)
Investors may also consult the websites of Kimco or WRI for more information concerning the Merger and the other transactions described in this joint proxy statement/prospectus. The website of Kimco is www.kimcorealty.com and the website of WRI is www.weingarten.com. Information included on these websites is not incorporated by reference into this joint proxy statement/prospectus.
If you would like to request any documents, please do so by July 27, 2021, in order to receive them before the special meetings.
For more information, see “Where You Can Find More Information” beginning on page 139.

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ABOUT THIS DOCUMENT
This joint proxy statement/prospectus, which forms part of a registration statement on Form S-4 (File No. 333-256587) filed with the Securities and Exchange Commission by Kimco Realty Corporation, a Maryland corporation (which we refer to as “Kimco”), constitutes a prospectus of Kimco under Section 5 of the Securities Act of 1933, as amended (which we refer to as the “Securities Act”), with respect to common stock, par value $0.01 per share, of Kimco (which we refer to as “Kimco common stock”), to be issued to WRI shareholders pursuant to, and subject to the terms and conditions of, the agreement and plan of merger, dated as of April 15, 2021 (which we refer to, as it may be amended or supplemented from time to time, as the “Merger Agreement”), by and between Kimco and Weingarten Realty Investors, a Texas real estate investment trust (which we refer to as “WRI”). This document also constitutes a joint proxy statement of Kimco and WRI under Section 14(a) of the Securities Exchange Act of 1934, as amended (which we refer to as the “Exchange Act”). It also constitutes a notice of meeting with respect to the special meeting of Kimco stockholders and a notice of meeting with respect to the special meeting of WRI shareholders, at which Kimco stockholders and WRI shareholders, respectively, will be asked to vote upon certain proposals to approve the Merger and other related matters.
You should rely only on the information contained or incorporated by reference into this joint proxy statement/prospectus. No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this joint proxy statement/prospectus. This joint proxy statement/prospectus is dated June 25, 2021. You should not assume that the information contained in, or incorporated by reference into, this joint proxy statement/prospectus is accurate as of any date other than the date on the front cover of those documents. Neither our mailing of this joint proxy statement/prospectus to Kimco stockholders or WRI shareholders nor the issuance of Kimco common stock in connection with the Merger will create any implication to the contrary.
This joint proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction. Information contained in this joint proxy statement/prospectus regarding Kimco has been provided by Kimco and information contained in this joint proxy statement/prospectus regarding WRI has been provided by WRI.


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QUESTIONS AND ANSWERS
The following are answers to some questions that you, as a stockholder of Kimco or a shareholder of WRI, may have regarding the proposed merger of Kimco and WRI and the other matters being considered at the special meeting of Kimco and at the special meeting of WRI. Kimco and WRI urge you to carefully read the entirety of this joint proxy statement/prospectus because the information in this section does not provide all the information that might be important to you with respect to the proposed merger and the other matters being considered at the special meetings. Additional important information is also contained in the annexes to and the documents incorporated by reference into this joint proxy statement/prospectus.
Q:
What is the Merger?
A:
Kimco and WRI have agreed to a business combination under the terms of the Merger Agreement, pursuant to which WRI will merge with and into Kimco (which we refer to as the “Merger”), with Kimco continuing as the surviving corporation of the Merger. A copy of the Merger Agreement is attached as Annex A to this joint proxy statement/prospectus.
In connection with the Merger, each WRI common shareholder will have the right to receive 1.408 (which we refer to as the “exchange ratio”) newly issued shares of Kimco common stock plus $2.89 in cash for each common share of beneficial ownership, par value $0.03 per share, of WRI (which we refer to as “WRI common shares”), that they own immediately prior to the effective time of the Merger, subject to customary anti-dilution adjustments and any adjustment that may be made pursuant to the terms of the Merger Agreement in certain circumstances relating to a special pre-closing distribution by WRI, and with cash paid in lieu of fractional shares.
Q:
What happens if the market price of shares of Kimco common stock or WRI common shares changes before the closing of the Merger?
A:
No change will be made to the Merger consideration if the market price of shares of Kimco common stock or WRI common shares changes before the Merger. Because the Merger consideration is fixed, other than customary anti-dilution adjustments in the event of certain changes in Kimco’s capitalization and in certain circumstances relating to a special distribution by WRI, the value of the consideration to be received by WRI shareholders in the Merger will depend on the market price of shares of Kimco common stock at the time of the Merger.
Q:
Why am I receiving this joint proxy statement/prospectus?
A:
The Merger cannot be completed, unless:
the holders of Kimco common stock vote to approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement (which we refer to as the “Kimco Merger Proposal”); and
the holders of WRI common shares vote to approve the Merger Agreement (which we refer to as the “WRI Merger Proposal”).
Each of Kimco and WRI will hold separate special meetings of their stockholders and shareholders, respectively, to obtain these approvals and approvals for other related proposals as described herein.
This joint proxy statement/prospectus contains important information about the Merger and the other proposals being voted on at the special meetings, and you should read it carefully. It is a joint proxy statement because the Kimco board of directors is soliciting proxies from its stockholders and the WRI board of trust managers is soliciting proxies from its shareholders. It is a prospectus because Kimco will issue shares of its common stock. The enclosed voting materials allow you to vote your shares without attending your respective meeting.
Your vote is important. We encourage you to vote as soon as possible.
Q:
Why is Kimco proposing the Merger?
A:
Among other reasons, the Kimco board of directors unanimously approved the Merger Agreement and the Merger and recommended the approval of the Kimco Merger Proposal based on a number of strategic and financial benefits to Kimco. For more information, see “The Merger—Kimco’s Reasons for the Merger; Recommendations of the Kimco Board of Directors.”
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Q:
Why is WRI proposing the Merger?
A:
Among other reasons, the WRI board of trust managers unanimously approved the Merger Agreement and the Merger and recommended approval of the WRI Merger Proposal based on a number of strategic and financial benefits. For more information, see “The Merger—WRI’s Reasons for the Merger; Recommendations of the WRI Board of Trust Managers.”
Q:
When and where will the special meetings be held?
A:
The Kimco special meeting will be held virtually on August 3, 2021, at www.virtualshareholdermeeting.com/KIM2021SM, at 10:00 a.m. local time. The WRI special meeting will be held on August 3, 2021, at 2600 Citadel Plaza Drive, Houston, Texas 77008, at 9:00 a.m. local time.
Q:
How do I vote?
A:
Kimco. If you are a holder of record of Kimco common stock as of the record date for the Kimco special meeting, you may vote by:
accessing the Internet website specified on your proxy card;
calling the toll-free number specified on your proxy card;
signing and returning the enclosed proxy card in the postage-paid envelope provided; or
attending the Kimco special meeting.
If you hold Kimco common stock in the name of a broker, bank or nominee, please follow the voting instructions provided by your broker, bank or nominee to ensure that your shares are represented at your special meeting. Street name holders may only vote at the Kimco special meeting if they have a legal proxy to vote their shares.
WRI. If you are a holder of record of WRI common shares as of the record date for the WRI special meeting, you may vote on the applicable proposals:
By Written Proxy. All shareholders of record can vote by written proxy card. If you are a beneficial owner, you may request a written proxy card or a vote instruction form from your bank or broker.
By Telephone or Internet. All shareholders of record also can vote by touchtone telephone using the toll-free telephone number on the proxy card, or through the Internet, using the procedures and instruction described on the proxy card. Beneficial owners may vote by telephone or Internet if their bank or broker makes those methods available, in which case the bank or broker will include the instructions with the proxy materials. The telephone and Internet voting procedures are designed to authenticate shareholders’ identities, to allow shareholders to vote their shares and to confirm that their instructions have been recorded properly.
In Person. All shareholders of record may vote in person at the meeting. Beneficial owners may vote in person at the meeting if they have a legal proxy.
Q:
What am I being asked to vote upon?
A:
Kimco. Holders of Kimco common stock are being asked to vote to approve the Kimco Merger Proposal. Holders of Kimco common stock are also being asked to vote to approve a proposal to adjourn the Kimco special meeting, if necessary or appropriate, to solicit additional proxies in favor of the Kimco Merger Proposal if there are insufficient votes at the time of such adjournment to approve the Kimco Merger Proposal (which we refer to as the “Kimco Adjournment Proposal”).
WRI. Holders of WRI common shares are being asked to vote to approve the WRI Merger Proposal. Holders of WRI common shares are also being asked to approve, by advisory (nonbinding) vote, the compensation that may be paid or become payable to the named executive officers of WRI in connection with the Merger (which we refer to as the “WRI Compensation Proposal”) and to approve a proposal to adjourn the WRI special meeting, if necessary or appropriate, to solicit additional proxies in favor of the WRI Merger Proposal, if there are insufficient votes at the time of such adjournment to approve the WRI Merger Proposal (which we refer to as the “WRI Adjournment Proposal”).
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The Merger cannot be completed without the approval by Kimco common stockholders of the Kimco Merger Proposal and the approval by WRI common shareholders of the WRI Merger Proposal.
Q:
What vote is required to approve each proposal?
A:
Kimco.
Approval of the Kimco Merger Proposal requires the affirmative vote of the holders of Kimco common stock entitled to cast a majority of all the votes entitled to be cast on the Kimco Merger Proposal at the Kimco special meeting.
Approval of the Kimco Adjournment Proposal requires the affirmative vote of the majority of the votes cast at the Kimco special meeting.
WRI.
Approval of the WRI Merger Proposal requires the affirmative vote of the holders of two-thirds of the outstanding WRI common shares entitled to vote on the WRI Merger Proposal at the WRI special meeting.
Approval of the WRI Compensation Proposal requires the affirmative vote of the holders of the majority of the WRI common shares entitled to vote, present in person or represented by proxy, at the WRI special meeting; however, such vote is advisory (nonbinding) only.
Approval of the WRI Adjournment Proposal requires the affirmative vote of the holders of the majority of the WRI common shares entitled to vote, present in person or represented by proxy, at the WRI special meeting.
Q:
How do the board of directors of Kimco and the board of trust managers of WRI recommend that I vote?
A:
Kimco. The Kimco board of directors unanimously recommends that holders of Kimco common stock vote “FOR” the Kimco Merger Proposal and “FOR” the Kimco Adjournment Proposal.
In considering the recommendation of the Kimco board of directors, holders of Kimco common stock should be aware that Kimco directors and executive officers may have interests in the Merger that are different from, or in addition to, the interests of holders of Kimco common stock generally. For a more complete description of these interests, see the information provided in the section entitled “The Merger—Interests of Kimco’s Directors and Executive Officers in the Merger.”
WRI. The WRI board of trust managers unanimously recommends that holders of WRI common shares vote “FOR” the WRI Merger Proposal, “FOR” the WRI Compensation Proposal and “FOR” the WRI Adjournment Proposal.
In considering the recommendation of the WRI board of trust managers, holders of WRI common shares should be aware that WRI trust managers and executive officers may have interests in the Merger that are different from, or in addition to, the interests of holders of WRI common shares generally. For a more complete description of these interests, see the information provided in the section entitled “The Merger—Interests of WRI Trust Managers and Executive Officers in the Merger.”
Q:
How many votes do I have?
A:
Kimco. You are entitled to one vote for each share of Kimco common stock that you owned as of the close of business on the record date. As of the close of business on June 21, 2021, the record date for the Kimco special meeting, there were 433,515,776 outstanding shares of Kimco common stock, approximately 2.8% of which were beneficially owned by the directors and executive officers of Kimco.
WRI. You are entitled to one vote for each WRI common share that you owned as of the close of business on the record date. As of the close of business on June 21, 2021, the record date for the WRI special meeting, there were 127,643,617 outstanding WRI common shares, 6.6% of which were beneficially owned by the directors and executive officers of WRI.
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Q:
What constitutes a quorum?
A:
Kimco. Stockholders who hold a majority of the Kimco common stock outstanding on the record date and who are entitled to vote must be present or represented by proxy to constitute a quorum at the Kimco special meeting.
WRI. Shareholders who hold a majority of the WRI common shares outstanding on the record date and who are entitled to vote must be present or represented by proxy to constitute a quorum at the WRI special meeting.
Q:
If my shares of common stock are held in “street name” by my broker, will my broker vote my shares for me?
A:
If you hold your shares in a stock brokerage account or if your shares are held by a bank or nominee (that is, in “street name”), you must provide the record holder of your shares with instructions on how to vote your shares. Please follow the voting instructions provided by your broker, bank or nominee. Please note that you may not vote shares held in street name by returning a proxy card directly to Kimco or WRI or by voting at either special meeting unless you provide a “legal proxy,” which you must obtain from your broker, bank or nominee. Further, brokers who hold shares of Kimco common stock or WRI common shares on behalf of their customers may not give a proxy to Kimco or WRI to vote those shares without specific instructions from their customers.
Q:
What will happen if I fail to vote or fail to instruct my broker, bank or nominee how to vote?
A:
Kimco. If you are a Kimco stockholder and you do not vote or instruct your broker, bank or nominee on how to vote your shares of Kimco common stock, your broker may not vote your shares on the Kimco Merger Proposal or the Kimco Adjournment Proposal and your shares will not be deemed to be represented at the Kimco special meeting. This will have the same effect as a vote against the Kimco Merger Proposal, but it will have no effect on the Kimco Adjournment Proposal.
WRI. If you are a WRI shareholder and you fail to instruct your broker, bank or nominee to vote your WRI common shares, as applicable, your broker may not vote your shares on the WRI Merger Proposal, the WRI Compensation Proposal or the WRI Adjournment Proposal, and your shares will not be deemed to be represented at the WRI special meeting. This will have the same effect as a vote against the WRI Merger Proposal, but it will have no effect on the WRI Compensation Proposal or the WRI Adjournment Proposal.
Q:
What will happen if I abstain from voting?
A:
Kimco. If you are a Kimco stockholder and abstain from voting, it will have the same effect as a vote against the Kimco Merger Proposal, but it will have no effect on the Kimco Adjournment Proposal.
WRI. If you are a WRI shareholder and abstain from voting, it will have the same effect as a vote against the WRI Merger Proposal, the WRI Compensation Proposal and the WRI Adjournment Proposal.
Q:
What if I return my proxy card without indicating how to vote?
A:
If you sign and return your proxy card without indicating how to vote on any particular proposal, your shares of Kimco common stock or WRI common shares will be voted in accordance with the recommendation of the Kimco board of directors or WRI board of trust managers, as applicable, with respect to such proposal.
Q:
Can I change my vote after I have returned a proxy or voting instruction card?
A:
Yes. You can change your vote at any time before your proxy is voted at your special meeting. You can do this in one of three ways:
you can send a signed notice of revocation;
you can grant a new, valid proxy bearing a later date; or
if you are a holder of record, you can attend the Kimco special meeting or the WRI special meeting, as applicable, and vote at the special meeting, which will automatically cancel any proxy previously given, or you may revoke your proxy at the special meeting, but your attendance alone will not revoke any proxy that you have previously given.
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Attending the Kimco special meeting or the WRI special meeting without voting will not, by itself, revoke your proxy. If your shares of Kimco common stock or WRI common shares are held by a bank, broker or nominee, you should follow the instructions provided by the bank, broker or nominee.
If you choose either of the first two methods, you must submit your notice of revocation or your new proxy to Alliance Advisors, LLC, Kimco’s proxy solicitor or Innisfree M&A Incorporated, WRI’s proxy solicitor, as appropriate, no later than the beginning of the applicable special meeting. If your shares of Kimco common stock or WRI common shares are held in street name by your broker, bank or nominee, you should contact your broker, bank or nominee to change your vote.
Q:
What are the material U.S. federal income tax consequences of the Merger to U.S. holders of WRI common shares?
A:
The Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, which we refer to as the “Code,” and it is a condition to the respective obligations of WRI and Kimco to complete the Merger that each of WRI and Kimco receives a legal opinion to the effect that the Merger will so qualify. Provided the Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code, a U.S. holder of WRI common shares generally will recognize gain, but not loss, in an amount equal to the lesser of (1) the amount of gain realized (i.e., the excess of the sum of the amount of cash and the fair market value of the Kimco common stock received pursuant to the Merger over that holder’s adjusted tax basis in its WRI common shares surrendered) and (2) the amount of cash received pursuant to the Merger. Further, a U.S. holder of WRI common shares generally will recognize gain or loss with respect to cash received instead of fractional shares of Kimco common stock that the WRI common shareholder would otherwise be entitled to receive. For further information, please refer to “Material U.S. Federal Income Tax Consequences of the Merger.”
The United States federal income tax consequences described above may not apply to all holders of WRI common shares. Your tax consequences will depend on your individual situation. Accordingly, we strongly urge you to consult your tax advisor for a full understanding of the particular tax consequences of the Merger to you.
Q:
Are there any conditions to closing of the Merger that must be satisfied for the Merger to be completed?
A:
Yes. In addition to the approval of the Kimco Merger Proposal and WRI Merger Proposal, there are a number of conditions that must be satisfied or waived for the Merger to be consummated. For more information, see “The Merger—The Merger Agreement—Conditions to Completion of the Merger.”
Q:
When do you expect the Merger to be completed?
A:
Kimco and WRI are working to complete the Merger during the second half of 2021. However, the Merger is subject to various conditions, and it is possible that factors outside the control of Kimco and WRI could result in the Merger being completed at a later time, or not at all. There may be a substantial amount of time between the respective Kimco special meeting and WRI special meeting and the completion of the Merger. Kimco and WRI hope to complete the Merger as soon as reasonably practicable following the satisfaction of all applicable conditions.
Q:
Are WRI shareholders and Kimco stockholders entitled to appraisal or dissenters’ rights in connection with the Merger?
A:
Holders of Kimco common stock will not be entitled to appraisal rights or dissenters’ rights in the Merger under Section 3-202 of the Maryland General Corporation Law (which we refer to as the “MGCL”) because Kimco common stock is listed on a national securities exchange.
Holders of WRI common shares are entitled to dissenters’ rights under Chapter 10, Subchapter H of the Texas Business Organizations Code (which we refer to as the “TBOC”), provided they (i) do not vote in favor of the WRI Merger Proposal, (ii) object in writing to the Merger prior to the WRI special meeting and (iii) follow the procedures and satisfy the conditions set forth in Chapter 10, Subchapter H of the TBOC. For more information, see “The Merger—Appraisal and Dissenters’ Rights” and “Dissenters’ Rights of WRI
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Shareholders.” In addition, a copy of Chapter 10, Subchapter H of the TBOC is attached as Annex E to this joint proxy statement/prospectus. Failure to strictly comply with Chapter 10, Subchapter H of the TBOC may result in your waiver of, or inability to, exercise dissenters’ rights.
Q:
What do I need to do now?
A:
Carefully read and consider the information contained in and incorporated by reference into this joint proxy statement/prospectus, including its annexes.
In order for your shares to be voted at the Kimco special meeting or the WRI special meeting:
you can attend the applicable special meeting;
you can vote through the Internet or by telephone by following the instructions included on your proxy card; or
you can indicate on the enclosed proxy or voting instruction card how you would like to vote and return the card in the accompanying postage-paid envelope.
Q:
Do I need to do anything with my share certificates now?
A:
WRI. No. You should not submit your share certificates at this time. After the Merger is completed, if you held certificates representing WRI common shares immediately prior to the effective time of the Merger, Equiniti Trust Company, the exchange agent for Kimco (which we refer to as the “exchange agent”), will send you a letter of transmittal and instructions for exchanging your WRI common shares for the Merger consideration. Upon surrender of the certificates for cancellation along with the executed letter of transmittal and other required documents described in the instructions, a holder of WRI common shares will receive the Merger consideration.
Holders of WRI common shares in book-entry form immediately prior to the effective time of the Merger will not need to take any action to receive the Merger consideration.
Kimco. If you are a Kimco stockholder, you are not required to take any action with respect to your Kimco stock certificates in connection with the Merger.
Q:
What should I do if I have technical difficulties or trouble accessing the Kimco special meeting website?
A:
If you encounter any difficulties accessing the Kimco special meeting, please call the technical support number that will be posted on the Kimco special meeting website.
Q:
Who can help answer my questions?
A:
Kimco stockholders or WRI shareholders who have questions about the Merger or the other matters to be voted on at the special meetings or who desire additional copies of this joint proxy statement/prospectus or additional proxy or voting instruction cards should contact:
if you are a Kimco stockholder:
if you are a WRI shareholder:
 
 
Alliance Advisors, LLC
200 Broadacres Drive
Bloomfield, New Jersey 07003
(855) 325-6670
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
(888) 750-5884 (Toll-free from the U.S. and Canada)
or
(412) 232-3651 (from other locations)
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SUMMARY
This summary highlights information contained elsewhere in this joint proxy statement/prospectus and may not contain all of the information that is important to you. Kimco and WRI urge you to read carefully this joint proxy statement/prospectus, including the attached annexes, and the other documents to which we have referred you because this section does not provide all of the information that might be important to you with respect to the Merger and the related matters being considered at the applicable special meeting. See also “Where You Can Find More Information.” We have included page references to direct you to a more complete description of the topics presented in this summary.
Information about the Companies
Kimco Realty Corporation (See page 28)
Kimco, a Maryland corporation, is one of North America’s largest publicly traded owners and operators of open-air, grocery-anchored shopping centers and mixed-use assets in the United States. Kimco’s mission is to create destinations for everyday living that inspire a sense of community and deliver value to its many stakeholders. Kimco is a self-administered REIT and has owned and operated open-air shopping centers for over 60 years. As of March 31, 2021, Kimco had interests in 398 shopping center properties, aggregating 69.8 million square feet of gross leasable area (which we refer to as “GLA”), located in 27 states. In addition, Kimco had 122 other property interests, primarily through Kimco’s preferred equity investments and other real estate investments, totaling 6.7 million square feet of GLA. Kimco’s ownership interests in real estate consist of its consolidated portfolio and portfolios where Kimco owns an economic interest, such as properties in Kimco’s investment real estate management programs, where Kimco partners with institutional investors and also retains management.
The principal offices of Kimco are located at 500 North Broadway, Suite 201, Jericho, New York 11753, and its telephone number is (516) 869-9000.
Kimco common stock is listed on the New York Stock Exchange (which we refer to as the “NYSE”), trading under the symbol “KIM.”
Additional information about Kimco and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. For more information, see “Where You Can Find More Information.”
Weingarten Realty Investors (See page 28)
WRI is a REIT organized under the Texas Business Organizations Code. WRI, and its predecessor entity, began the ownership of shopping centers and other commercial real estate in 1948. WRI’s primary business is leasing space to tenants in the shopping centers it owns or leases. These centers may be mixed-use properties that have both retail and residential components. WRI also provides property management services for which it charges fees to joint ventures where WRI is a partner. As of March 31, 2021, WRI owned or operated under long-term leases, either directly or through its interest in real estate joint ventures or partnerships, a total of 156 properties, which are located in 15 states spanning the country from coast to coast. Also as of March 31, 2021, WRI owned interests in 22 parcels of land held for development that totaled approximately 11.5 million square feet.
WRI’s principal executive offices are located at 2600 Citadel Plaza Drive, Suite 125, Houston, Texas 77008, and its telephone number is (713) 866-6000.
WRI common shares are listed on the NYSE, trading under the symbol “WRI.”
Additional information about WRI and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. For more information, see “Where You Can Find More Information.”
Risk Factors (See page 18)
Before voting at the Kimco special meeting or the WRI special meeting, you should carefully consider all of the information contained in or incorporated by reference into this joint proxy statement/prospectus, as well as the specific factors under the heading “Risk Factors” beginning on page 18, including the risks that:
the Merger is subject to a number of conditions and may not be completed on the terms or timeline currently contemplated, or at all;
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the Merger consideration is fixed and will not be adjusted in the event of any change in the stock prices of either Kimco or WRI;
Kimco and WRI may be unable to successfully integrate their businesses in order to realize the anticipated benefits of the Merger;
Kimco stockholders and WRI shareholders will be diluted by the Merger; and
Kimco may incur adverse tax consequences if Kimco or WRI has failed or fails to qualify as a REIT for U.S. federal income tax purposes.
The Merger
The Merger Agreement (See page 87)
Kimco and WRI have entered into the Merger Agreement attached as Annex A to this joint proxy statement/ prospectus. The Kimco board of directors and the WRI board of trust managers have both unanimously approved the combination of Kimco and WRI. Kimco and WRI encourage you to read the entire Merger Agreement carefully because it is the principal legal document governing the Merger.
Form of the Merger (See page 71)
Pursuant to the Merger Agreement, WRI will merge with and into Kimco, with Kimco continuing as the surviving corporation of the Merger.
Upon completion of the Merger, we estimate that legacy Kimco common stockholders will own approximately 71% of the Kimco common stock and legacy WRI common shareholders will own approximately 29% of the Kimco common stock.
Merger Consideration (See page 71)
Under the terms of the Merger Agreement, upon consummation of the Merger, holders of WRI common shares will have the right to receive 1.408 newly issued shares of Kimco common stock plus $2.89 in cash for each WRI common share they own immediately prior to the effective time of the Merger, subject to customary anti-dilution adjustments and any adjustment that may be made pursuant to the terms of the Merger Agreement in certain circumstances relating to a special pre-closing distribution by WRI, and with cash paid in lieu of fractional shares. The Merger consideration is fixed and will not be adjusted for changes in the market value of WRI common shares or Kimco common stock. Because of this, the value of the consideration to WRI shareholders in the Merger will fluctuate between now and the completion of the Merger.
Based on the closing price of Kimco common stock on the NYSE of $19.48 on April 14, 2021, the last trading day before public announcement of the Merger, the Merger consideration represented approximately $30.32 for each WRI common share. Based on the closing price of Kimco common stock on the NYSE of $21.25 on June 16, 2021, the latest practicable date before the date of this joint proxy statement/prospectus, the Merger consideration represented approximately $32.81 for each WRI common share. For more information, see “Equivalent and Comparative Per Share Information.”
The following table presents trading information for Kimco common stock and WRI common shares on April 14, 2021, the last trading day before public announcement of the Merger, and June 16, 2021, the latest practicable date before the date of this joint proxy statement/prospectus. Trading information for WRI common shares adjusted by the Merger consideration is also provided for each of these dates.
 
Kimco
Common Stock
(Close)
WRI
Common Shares
(Close)
WRI Common Shares
(adjusted by
Merger consideration)
(Close)
April 14, 2021
$19.48
$27.34
$30.32
June 16, 2021
$21.25
$32.64
$32.81
The market prices of Kimco common stock and WRI common shares fluctuate. As a result, we urge you to obtain current market quotations of Kimco common stock and WRI common shares.
Treatment of WRI Equity-Based Awards in the Merger (See page 72)
At the effective time of the Merger, upon the terms and subject to the conditions of the Merger Agreement, each award of restricted WRI common shares that is outstanding as of immediately prior to the effective time of
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the Merger will become vested at the effective time of the Merger either by its terms or the terms of any of WRI’s benefit plans as a result of the occurrence of the effective time of the Merger, with any applicable performance goals deemed satisfied at the target level, and, as of the effective time of the Merger, shall be canceled and converted into the right to receive the Merger consideration with respect to each WRI common share subject to such WRI restricted share award.
Treatment of WRI ESPP (See page 68)
Pursuant to the Merger Agreement, following the date of the Merger Agreement, participation in the Weingarten Realty Investors Amended and Restated Employee Share Purchase Plan (which we refer to as the “ESPP”) will be limited to those employees who were participants as of immediately prior to the execution of the Merger Agreement, and participants may not increase their payroll deduction elections or rate of contributions from those in effect as of immediately prior to the execution of the Merger Agreement and may not make any separate non-payroll contributions. No new offering period will commence under the ESPP following the date the Merger Agreement was executed, and the ESPP will terminate at the effective time.
Recommendations of the Kimco Board of Directors (See page 36)
After careful consideration, the Kimco board of directors, on April 14, 2021, unanimously approved the Merger Agreement and the transactions contemplated thereby, including the Merger, and declared the Merger Agreement and such transactions to be advisable and in the best interests of Kimco.
The Kimco board of directors unanimously recommends that holders of Kimco common stock vote “FOR” the Kimco Merger Proposal and “FOR” the Kimco Adjournment Proposal.
For the factors considered by the Kimco board of directors in reaching its decision to approve the Merger Agreement and the recommendations of the Kimco board of directors, see “The Merger—Kimco’s Reasons for the Merger; Recommendations of the Kimco Board of Directors.”
Recommendations of the WRI Board of Trust Managers (See page 39)
After careful consideration, the WRI board of trust managers, on April 14, 2021, unanimously approved the Merger Agreement and the transactions contemplated thereby, including the Merger, and declared the Merger Agreement and such transactions to be advisable and in the best interests of WRI and the shareholders of WRI.
The WRI board of trust managers unanimously recommends that the WRI shareholders vote “FOR” the WRI Merger Proposal, “FOR” the WRI Compensation Proposal and “FOR” the WRI Adjournment Proposal.
For the factors considered by the WRI board of trust managers in reaching its decision to approve the Merger Agreement and the recommendations of the WRI board of trust managers, see “The Merger—WRI’s Reasons for the Merger; Recommendations of the WRI Board of Trust Managers.”
Opinion of Kimco’s Financial Advisors (See page 42)
Opinion of Barclays Capital Inc.
Kimco engaged Barclays Capital Inc. (which we refer to as “Barclays”) to act as its financial advisor in connection with the Merger, pursuant to an engagement letter dated April 14, 2021. On April 14, 2021, Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Kimco board of directors that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the consideration to be paid by Kimco in the Merger was fair, from a financial point of view, to Kimco.
The full text of Barclays’ written opinion, dated as of April 14, 2021, is attached as Annex C to this joint proxy statement/prospectus. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety. For a summary of Barclays’ opinion and the methodology that Barclays used to render its opinion, see “The Merger— Opinions of Kimco’s Financial Advisors—Opinion of Barclays Capital Inc.” The summary of Barclays' opinion set forth in this joint proxy statement/prospectus is qualified in its entirety by reference to the full text of the opinion. Barclays' opinion, the issuance of which was approved by Barclays' Valuation and
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Fairness Opinion Committee, is addressed to the board of directors of Kimco, addresses only the fairness, from a financial point of view, of the consideration to be paid by Kimco and does not constitute a recommendation to any shareholder of Kimco as to how such shareholder should vote with respect to the Merger or any other matter. Barclays was not requested to address, and its opinion does not in any manner address, Kimco's underlying business decision to proceed with or effect the Merger, the likelihood of the consummation of the Merger, or the relative merits of the Merger as compared to any other transaction in which Kimco may engage.
Opinion of Lazard Frères & Co. LLC
Kimco has retained Lazard Frères & Co. LLC (which we refer to as “Lazard”) as its financial advisor in connection with the Merger. In connection with this engagement, Kimco requested that Lazard evaluate the fairness, from a financial point of view, to Kimco of the Merger consideration to be paid by Kimco in the Merger. On April 14, 2021, at a meeting of the Kimco board of directors held to evaluate the Merger, Lazard rendered to the Kimco board of directors an oral opinion, which was subsequently confirmed by delivery of a written opinion dated April 14, 2021, to the effect that, as of that date and based on and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken described in such opinion, the Merger consideration to be paid by Kimco in the Merger was fair, from a financial point of view, to Kimco.
The full text of Lazard’s written opinion, dated April 14, 2021, which describes the assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken, is attached as Annex D to this joint proxy statement/prospectus and is incorporated herein by reference. For a summary of Lazard’s opinion and the methodology that Lazard used to render its opinion, see “The Merger—Opinions of Kimco’s Financial Advisors—Opinion of Lazard Frères & Co. LLC.”
The summary of the written opinion of Lazard, dated April 14, 2021, set forth in this joint proxy statement/prospectus is qualified in its entirety by reference to the full text of Lazard’s written opinion attached as Annex D. Lazard’s opinion was for the benefit of the Kimco board of directors (in its capacity as such) and Lazard’s opinion was rendered to the Kimco board of directors in connection with its evaluation of the Merger and did not address any terms or other aspects (other than the Merger consideration to the extent expressly specified in Lazard’s opinion) of the Merger. Lazard’s opinion did not address the relative merits of the Merger as compared to any other transaction or business strategy in which Kimco might engage or the merits of the underlying decision by Kimco to engage in the Merger. Lazard’s opinion is not intended to and does not constitute a recommendation to any shareholder as to how such shareholder should vote or act with respect to the Merger or any matter relating thereto.
Opinion of WRI’s Financial Advisor (See page 54)
Pursuant to an engagement letter, WRI retained J.P. Morgan Securities LLC (which we refer to as “J.P. Morgan”) as its financial advisor in connection with the Merger.
At the meeting of the WRI board of trust managers held on April 14, 2021, J.P. Morgan rendered its oral opinion to the WRI board of trust managers that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders. J.P. Morgan has confirmed its April 14, 2021 oral opinion by delivering its written opinion, dated as of April 14, 2021, to the WRI board of trust managers that, as of such date, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders.
The full text of the written opinion of J.P. Morgan, dated as of April 14, 2021, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex E to this loint proxy statement/prospectus and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this joint proxy statement/prospectus is qualified in its entirety by reference to the full text of such opinion. WRI’s shareholders are urged to read the opinion in its entirety. J.P. Morgan’s opinion was addressed to WRI’s board of trust managers (in its capacity as such) in connection with and for the purposes of its evaluation of the Merger, was directed only to the Merger consideration to be paid in the
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Merger and did not address any other aspect of the Merger. J.P. Morgan expressed no opinion as to the fairness of the Merger Consideration to the holders of any other class of securities, creditors or other constituencies of WRI or as to the underlying decision by WRI to engage in the Merger. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. The opinion does not constitute a recommendation to any shareholder of WRI as to how such shareholder should vote with respect to the Merger or any other matter. For a description of the opinion that the WRI board of trust managers received from J.P. Morgan, see the section entitled “The Merger—Opinion of WRI’s Financial Advisor.
Interests of Kimco Directors and Executive Officers in the Merger (See page 63)
In addition to their interests in the Merger as stockholders, the directors and executive officers of Kimco have interests in the Merger that may be different from, or in addition to, those of Kimco stockholders generally. The Kimco board of directors was aware of these interests and considered them, among other matters, in approving the Merger Agreement and the Merger. These interests generally include the continued employment or service of the executive officers and directors of Kimco following the Merger.
For more information, see “The Merger—Interests of Kimco Directors and Executive Officers in the Merger.
Interests of WRI Trust Managers and Executive Officers in the Merger (See page 63)
In addition to their interests in the Merger as shareholders, the trust managers and executive officers of WRI have interests in the Merger that may be different from, or in addition to, those of WRI shareholders generally. The WRI board of trust managers was aware of these interests and considered them, among other matters, in approving the Merger Agreement and the Merger. These interests include, among others, (i) the automatic vesting of WRI restricted share awards at the effective time of the Merger, (ii) certain severance and other separation benefits that may be payable upon a termination of employment following the effective time of the Merger, (iii) entitlement to continued indemnification and insurance coverage under the Merger Agreement, (iv) a prorated incentive payment in respect of prorated target bonus and WRI restricted share award opportunities for 2021, and (v) that the chairman of WRI’s board of trust managers is expected to enter into a consulting agreement with Kimco at the closing of the Merger.
For more information, see “The Merger—Interests of WRI Trust Managers and Executive Officers in the Merger.”
Directors and Management Following the Merger (See page 67)
The Merger Agreement provides that immediately following the effective time of the Merger, Kimco will add to its board of directors the chairman of the board of trust managers of WRI (or any other individual as may be agreed in writing by Kimco and WRI). The parties have subsequently agreed that the Kimco board of directors will remain eight members immediately following the effective time of the Merger, consisting of the existing members of the board of directors of Kimco immediately prior to the effective time. The chairman of WRI’s board of trust managers is expected to enter into a consulting agreement with Kimco at the closing of the Merger.
The current senior leadership team of Kimco is not expected to change as a result of the Merger. Pursuant to the Merger Agreement, at the effective time of the Merger, the senior leadership team of Kimco will include Mr. Milton Cooper as Executive Chairman of the Board of Directors, Mr. Conor C. Flynn as Chief Executive Officer, Mr. Ross Cooper as President and Chief Investment Officer, Mr. Glenn G. Cohen as Executive Vice President, Chief Financial Officer and Treasurer and Mr. David Jamieson as Executive Vice President and Chief Operating Officer. See “The Merger—Directors and Management Following the Merger” for additional information.
Accounting Treatment (See page 68)
Kimco prepares its financial statements in accordance with accounting principles generally accepted in the United States (which we refer to as “GAAP”). The Merger will be accounted for by using the business combination accounting rules. For more information, see “The Merger—Accounting Treatment.”
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Regulatory Approvals (See page 68)
In connection with the issuance of Kimco common stock in the Merger, pursuant to the Merger Agreement, as a condition to the closing of the Merger, Kimco must file a registration statement with the SEC under the Securities Act, of which this joint proxy statement/prospectus forms a part, that is declared effective by the SEC.
Expected Timing of the Merger (See page 68)
Kimco and WRI are working to complete the Merger in the second half of 2021. However, the Merger is subject to various conditions, and it is possible that factors outside the control of both companies could result in the Merger being completed at a later time, or not at all. There may be a substantial amount of time between the respective Kimco and WRI special meetings and the completion of the Merger. Kimco and WRI hope to complete the Merger as soon as reasonably practicable following the satisfaction of all applicable conditions. For more information, see “Risk Factors—Risks Related to the Merger.”
Conditions to Completion of the Merger (See page 83)
As more fully described in this joint proxy statement/prospectus and in the Merger Agreement, the completion of the Merger depends on a number of conditions being satisfied or, where legally permissible, waived. These conditions include:
receipt of the requisite approvals of Kimco stockholders and WRI shareholders;
the approval for listing on the NYSE of shares of Kimco common stock to be issued in connection with the Merger, subject to official notice of issuance;
the SEC having declared effective the registration statement of which this joint proxy statement/prospectus forms a part, and the absence of any stop order or proceedings seeking a stop order;
the absence of any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger;
the absence of any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any governmental entity of competent jurisdiction which makes the consummation of the Merger illegal;
the accuracy of all representations and warranties made by the parties to the Merger Agreement (subject in most cases to materiality or material adverse effect qualifications) and performance by the parties of their obligations under the Merger Agreement in all material respects, and receipt of an officer’s certificate from each party attesting thereto;
receipt by each of Kimco and WRI of an opinion to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and
the receipt by each of Kimco and WRI of an opinion regarding the other party’s qualification as a REIT.
We cannot be certain when, or if, the conditions to the Merger will be satisfied or waived, or that the Merger will be completed.
No Solicitation (See page 84)
Pursuant to the Merger Agreement, WRI is subject to a customary “no-shop” provision that requires it to refrain from, and to cease discussions or solicitations with respect to, alternative transactions and to certain restrictions in considering and negotiating alternative transactions. If WRI receives an unsolicited proposal that constitutes or is reasonably likely to lead to a superior proposal (as hereinafter defined), WRI may provide nonpublic information to the proposing party and engage in discussions or negotiations with the party making such a proposal. WRI agreed in the Merger Agreement to promptly notify Kimco of any proposal for an alternative transaction within 24 hours and provide Kimco with the material terms of such proposal.
In response to a superior proposal, the WRI board of trust managers may change its recommendation with respect to its shareholder vote, and may terminate the Merger Agreement in order to accept such proposal. Prior to effecting such change, WRI must provide Kimco with notice, reasons for such action and 96 hours of good-faith negotiations (to the extent Kimco desires to negotiate) to not change the recommendation or terminate the Merger Agreement.
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Termination of the Merger Agreement (See page 87)
The Merger Agreement may be terminated prior to the effective time of the Merger, whether before or after the required approvals of the Kimco stockholders and WRI shareholders are obtained:
by mutual written consent of Kimco and WRI;
by either Kimco or WRI, if any governmental entity issues a permanent, non-appealable order, decree or ruling enjoining or prohibiting the consummation of the Merger;
by either Kimco or WRI, if the Merger is not consummated by January 15, 2022;
by either Kimco or WRI, if there is a breach of the representations or covenants of the other party that would result in the failure of the related closing condition to be satisfied, subject to a cure period;
by either Kimco or WRI, if the required approvals of either the Kimco stockholders or the WRI shareholders are not obtained;
by Kimco, prior to the time WRI shareholder approval is obtained, if the WRI board of trust managers changes its recommendation regarding approval of the WRI Merger Proposal;
by Kimco, prior to the time WRI shareholder approval is obtained, upon a willful and material breach of WRI’s obligations not to solicit alternative transactions; and
by WRI, prior to the time WRI shareholder approval is obtained, to enter into a superior proposal, subject to compliance with certain terms of the Merger Agreement.
Expenses and Termination Fees (See page 88)
Generally, all fees and expenses incurred in connection with the Merger and the transactions contemplated by the Merger Agreement will be paid by the party incurring those expenses. For more information, see “The Merger—The Merger Agreement—Fees and Expenses.” The Merger Agreement further provides that WRI is required to pay Kimco a termination fee equal to $115,000,000 under certain circumstances. For more information, see “The Merger—The Merger Agreement—Termination of the Merger Agreement.”
Voting Agreements (See page 90)
In connection with the execution of the Merger Agreement, Kimco and WRI entered into voting agreements with each of Andrew M. Alexander and Stanford J. Alexander. The voting agreements provide, subject to the terms and conditions thereof, for each of Messrs. A. Alexander and S. Alexander, solely in his capacity as a shareholder of WRI, to vote the WRI common shares he owns of record or beneficially in favor of the Merger Agreement and against any alternative acquisition proposal. As of the record date for the WRI special meeting, Messrs. A. Alexander and S. Alexander collectively owned of record or beneficially approximately 5.4% of the WRI shares outstanding on that date.
Appraisal and Dissenters’ Rights (See page 70)
The holders of WRI common shares have the right under Texas law to dissent from the Merger and have the appraised fair value of their WRI common shares as of the date immediately preceding the effective date of the Merger paid to them in cash. The appraised fair value of any particular number of WRI common shares as of such date may be more or less than the value of the Merger consideration that a holder of that particular number of WRI common shares would be issued in the Merger in exchange for that particular number of WRI common shares pursuant to the Merger Agreement.
In order to dissent, the holder of WRI common shares must carefully follow the requirements under Chapter 10, Subchapter H of the TBOC governing dissenters’ rights, including providing WRI, prior to the WRI special meeting, with a written objection to the Merger that states that he or she will exercise his or her right to dissent with respect to his or her WRI common shares if the holders of the WRI common shares approve the WRI Merger Proposal and the Merger is completed. The provisions of the TBOC pertaining to dissenters’ rights are attached to this joint proxy statement/prospectus as Annex F and the summaries of those provisions in this joint proxy statement/prospectus should be read in conjunction with, and are qualified in their entirety by, those provisions of the TBOC. Persons having beneficial interests in WRI common shares held of record in the name of another person, such as a broker, bank or other nominee, must act promptly to cause the record holder to take the actions required under Texas law to exercise their dissenters’ rights.
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If you intend to exercise dissenters’ rights as to WRI common shares that you hold, you should read the provisions of the TBOC governing dissenters’ rights carefully and consult with your own legal counsel. Each holder of WRI common shares should also remember that if he or she returns a signed proxy card, but fails to provide instructions on that proxy card as to how his or her WRI common shares are to be voted against the WRI Merger Proposal, such WRI shareholder’s common shares will be considered to have voted in favor of the WRI Merger Proposal. In that event, such WRI shareholder will not be able to assert dissenters’ rights as to his or her WRI common shares.
If the WRI shareholders approve the WRI Merger Proposal, a holder of WRI common shares who (i) delivers to the president and the secretary of WRI a written objection to the Merger prior to the WRI special meeting that states that such holder will exercise his or her right to dissent if the WRI Merger Proposal is approved and the Merger is completed and includes an address for notice of the effectiveness of the Merger, (ii) votes his or her WRI common shares against approval of the WRI Merger Proposal at the WRI special meeting, (iii) not later than the 20th day after Kimco sends such holder notice that the Merger was completed, delivers to the president and secretary of Kimco a written demand for payment of the fair value of his or her WRI common shares, which demand states he or she holds WRI common shares and states the number of WRI common shares such holder owns, his or her estimate of the fair value of such shares and an address to which a notice relating to the dissent and appraisal procedures may be sent, and (iv) not later than the 20th day after he or she makes that demand for payment, submits to Kimco the certificates representing his or her WRI common shares will be entitled under the TBOC to receive the appraised fair value of his or her WRI common shares as of the date immediately prior to the effective time of the Merger.
Under Maryland law, the holders of Kimco common stock are not entitled to appraisal rights in connection with the Merger.
For more information, see “The Merger—Appraisal and Dissenters’ Rights” and “Dissenters’ Rights of WRI Shareholders.”
Material U.S. Federal Income Tax Consequences of the Merger (See page 91)
The Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code and it is a condition to the respective obligations of WRI and Kimco to complete the Merger that each of WRI and Kimco receives a legal opinion to the effect that the Merger will so qualify. Provided the Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code, a U.S. holder of WRI common shares generally will recognize gain, but not loss, in an amount equal to the lesser of (1) the amount of gain realized (i.e., the excess of the sum of the amount of cash and the fair market value of the Kimco common stock received pursuant to the Merger over that holder’s adjusted tax basis in its WRI common shares surrendered) and (2) the amount of cash received pursuant to the Merger. Further, a U.S. holder of WRI common shares generally will recognize gain or loss with respect to cash received instead of fractional shares of Kimco common stock that the WRI common shareholder would otherwise be entitled to receive. For further information, please refer to “Material U.S. Federal Income Tax Consequences of the Merger.”
The United States federal income tax consequences described above may not apply to all holders of WRI common shares. Your tax consequences will depend on your individual situation. Accordingly, we strongly urge you to consult your tax advisor for a full understanding of the particular tax consequences of the Merger to you.
The Kimco Special Meeting (See page 94)
The Kimco special meeting will be held virtually on August 3, 2021, at www.virtualshareholdermeeting.com/KIM2021SM, at 10:00 a.m. local time. You may vote at the Kimco special meeting if you owned shares of Kimco common stock at the close of business on June 21, 2021, the record date for the Kimco special meeting. On that date, there were 433,515,776 shares of Kimco common stock outstanding and entitled to vote. Each share of Kimco common stock is entitled to cast one vote on all matters that come before the Kimco special meeting.
At the Kimco special meeting, Kimco stockholders will be asked to consider and vote upon:
the Kimco Merger Proposal; and
the Kimco Adjournment Proposal.
Only the approval of the Kimco Merger Proposal is a condition to the completion of the Merger.
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The Kimco Merger Proposal requires the affirmative vote of the holders of Kimco common stock entitled to cast a majority of all the votes entitled to be cast on the Kimco Merger Proposal at the Kimco special meeting. The Kimco Adjournment Proposal requires the affirmative vote of the majority of the votes cast at the Kimco special meeting. If a quorum is not present, the chair of the Kimco special meeting may adjourn the meeting.
On the record date, approximately 2.8% of the outstanding shares of Kimco common stock were held by Kimco directors and executive officers. Kimco currently expects that the Kimco directors and executive officers will vote their shares in favor of the Kimco Merger Proposal and the Kimco Adjournment Proposal, although none has entered into any agreements obligating them to do so.
The Kimco board of directors unanimously recommends that Kimco stockholders vote “FOR” all of the proposals set forth above. For more information, see “The Kimco Special Meeting.”
The WRI Special Meeting (See page 98)
The WRI special meeting will be held on August 3, 2021, at 2600 Citadel Plaza Drive, Houston, Texas 77008, at 9:00 a.m. local time. You may vote at the WRI special meeting if you owned WRI common shares at the close of business on June 21, 2021, the record date for the WRI special meeting. On that date, there were 127,643,617 WRI common shares outstanding and entitled to vote. Each WRI common share is entitled to cast one vote on all matters that come before the WRI special meeting.
At the WRI special meeting, shareholders of WRI will be asked to consider and vote upon:
the WRI Merger Proposal;
the WRI Compensation Proposal; and
the WRI Adjournment Proposal.
Only the approval of the WRI Merger Proposal is a condition to the completion of the Merger.
The WRI Merger Proposal requires the affirmative vote of holders of two-thirds of the outstanding WRI common shares entitled to vote on the WRI Merger Proposal. The WRI Compensation Proposal requires the affirmative vote of the majority of the WRI common shares entitled to vote, present in person or represented by proxy at the WRI special meeting. The WRI Adjournment Proposal requires the affirmative vote of the majority of the WRI common shares entitled to vote, present in person or represented by proxy at the WRI special meeting. If a quorum is not present, the holders of a majority of WRI common shares entitled to vote, present in person or by proxy at the WRI special meeting may adjourn the meeting.
On the record date, approximately 6.6% of the outstanding WRI common shares were held by WRI directors and executive officers. WRI currently expects that the directors and executive officers of WRI will vote their shares in favor of the WRI Merger Proposal, the WRI Compensation Proposal and the WRI Adjournment Proposal. In connection with the execution of the Merger Agreement, Kimco and WRI entered into voting agreements with each of Andrew M. Alexander and Stanford J. Alexander. The voting agreements provide, subject to the terms and conditions thereof, for each of Messrs. A. Alexander and S. Alexander, solely in his capacity as a shareholder of WRI, to vote the WRI common shares he owns of record or beneficially in favor of the Merger Agreement and against any alternative acquisition proposal. As of the record date for the WRI special meeting, Andrew M. Alexander and Stanford J. Alexander collectively owned of record or beneficially approximately 5.4% of the WRI shares outstanding on that date.
The WRI board of trust managers unanimously recommends that WRI shareholders vote “FOR” all of the proposals set forth above. For more information, see “The WRI Special Meeting.”
Rights of WRI Shareholders Will Change as a Result of the Merger (See page 124)
WRI shareholders will have different rights once they become stockholders of Kimco, due to differences between the governing documents of Kimco and WRI and between Maryland and Texas law. These differences are described in detail under “Comparison of Rights of Kimco Stockholders and WRI Shareholders.”
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Litigation Relating to the Merger (page 70)
Beginning on May 28, 2021, two purported holders of WRI common shares filed substantially similar complaints against WRI and the members of the WRI board of trust managers in the United States District Court for the Southern District of New York. One of these suits also names Kimco. The complaints variously assert, among other things, claims under Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against WRI and the members of the WRI board of trust managers and claims under Section 20(a) of the Exchange Act against the members of the WRI board of trust managers (and, in one case, Kimco) for allegedly causing a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. In addition, beginning on June 7, 2021, two purported holders of Kimco common stock filed substantially similar complaints against Kimco and the members of the Kimco board of directors in the United States District Court for the Eastern District of New York and the United States District Court for the Southern District of New York, respectively. The complaints assert, among other things, claims under Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against Kimco and the members of the Kimco board of directors and claims under Section 20(a) of the Exchange Act against the members of the Kimco board of directors for allegedly causing a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. In addition, on June 21, 2021, a purported holder of Kimco common stock filed a complaint against Kimco and the members of the Kimco board of directors in the Supreme Court of the State of New York for the County of Westchester. The complaint asserts, among other things, claims for breach of fiduciary duty under Maryland law as well as fraudulent misrepresentation, negligent misrepresentation and concealment under New York common law against Kimco and its board of directors. The complaint alleges that Kimco and its board of directors caused a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. Among other remedies, the plaintiffs seek to enjoin the Merger.
If any case is not resolved, the lawsuit(s) could prevent or delay completion of the Merger and result in costs to Kimco and WRI.
For more information, see “The Merger—Litigation Relating to the Merger.”
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EQUIVALENT AND COMPARATIVE PER SHARE INFORMATION
The following table sets forth, for the three months ended March 31, 2021 and the year ended December 31, 2020, selected per share information for Kimco common stock on a historical and pro forma combined basis and for WRI common shares on a historical and pro forma equivalent basis. You should read the table below together with the historical consolidated financial statements and related notes of Kimco and WRI contained in their respective Quarterly Reports on Form 10-Q for the period ended March 31, 2021, and Annual Reports on Form 10-K for the year ended December 31, 2020, which are incorporated by reference into this joint proxy statement/prospectus. For more information, see “Where You Can Find More Information.”
The Kimco pro forma combined earnings per share were calculated using the methodology as described under the heading “Unaudited Pro Forma Condensed Combined Financial Statements,” and are subject to all the assumptions, adjustments and limitations described thereunder. The unaudited pro forma condensed combined balance sheet data gives effect to the Merger as if it had occurred on March 31, 2021. The unaudited pro forma condensed combined statements of operations data gives effect to the Merger as if it had become effective at January 1, 2020, based on the most recent valuation data available. The WRI pro forma equivalent per common share amounts were calculated by multiplying the Kimco pro forma combined per share amounts by the exchange ratio of 1.408. You should not rely on the pro forma amounts as being indicative of the financial position or results of operations of Kimco that actually would have occurred had the merger been completed as of the date indicated above, nor is it necessarily indicative of the future operating results or financial position of Kimco.
 
Kimco
WRI
 
Historical
Pro Forma for Merger
Historical
Pro Forma for Merger
 
Three
Months
Ended
March 31,
2021
Year
Ended
December 31,
2020
Three
Months
Ended
March 31,
2021
Year
Ended
December 31,
2020
Three
Months
Ended
March 31,
2021
Year
Ended
December 31,
2020
Three
Months
Ended
March 31,
2021
Year
Ended
December 31,
2020
Basic earnings per share
$0.30
$2.26
$0.27
$1.79
$0.22
$0.88
$0.38
$2.52
Diluted earnings per share
$0.30
$2.25
$0.27
$1.79
$0.22
$0.88
$0.38
$2.52
Cash dividends declared per share
$0.17
$0.54
$0.17(1)
$0.54(1)
$0.30
$1.30
$0.24(2)
$0.76(2)
Book value per share (period end)
$13.07
 
$15.39
 
$12.65
 
$21.66
 
(1)
Dividends are declared and paid at the discretion of the Kimco board of directors. The Kimco board of director may change Kimco’s dividend policy at any time and there can be no assurance as to amount or timing of dividends in the future.
(2)
Dividends are declared and paid at the discretion of the WRI board of trust managers. The WRI board of trust managers may change WRI’s dividend policy at any time and there can be no assurance as to amount or timing of dividends in the future.
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 RISK FACTORS
An investment by WRI’s shareholders in Kimco common stock as a result of the exchange of WRI common shares for the Merger consideration involves certain risks. Similarly, a decision on the part of Kimco stockholders to approve the Merger also involves risks for the Kimco stockholders, who will continue to hold their shares of Kimco common stock after the Merger. Certain material risks and uncertainties connected with the Merger Agreement, including the Merger, and ownership of Kimco common stock are discussed below. In addition, Kimco and WRI discuss certain other material risks connected with the ownership of Kimco common stock and with Kimco’s business, and with the ownership of WRI common shares and WRI’s business, respectively, under the caption “Risk Factors” appearing in their Annual Reports on Form 10-K most recently filed with the SEC and may include additional or updated disclosures of such material risks in its subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that each has filed with the SEC or may file with the SEC after the date of this joint proxy statement/prospectus, each of which reports is or will be incorporated by reference in this joint proxy statement/prospectus.
Holders of WRI common shares and holders of Kimco common stock should carefully read and consider all of these risks and all other information contained in this joint proxy statement/prospectus, including the discussions of risk factors included in the documents incorporated by reference in this joint proxy statement/prospectus, in deciding whether to vote for approval of the various proposals for which they may be entitled to vote at the WRI special meeting or the Kimco special meeting described herein. The risks described in this joint proxy statement/prospectus and in those documents incorporated by reference may adversely affect the value of Kimco common stock that you, as an existing Kimco stockholder, currently hold or that you, as an existing holder of WRI common shares, will hold upon consummation of the Merger, and could result in a significant decline in the value of Kimco common stock and cause the current holders of Kimco common stock and/or the holders of WRI common shares to lose all or part of their respective investments in the Kimco common stock.
Risks Related to the Merger
The Merger may not be completed on the terms or timeline currently contemplated, or at all.
The completion of the Merger is subject to certain conditions, including:
receipt of the requisite approvals of Kimco stockholders and WRI shareholders;
the approval for listing on the NYSE of shares of Kimco common stock to be issued in connection with the Merger, subject to official notice of issuance;
the SEC having declared effective the registration statement of which this joint proxy statement/prospectus forms a part, and the absence of any stop order or proceedings seeking a stop order;
the absence of any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger;
the absence of any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any governmental entity of competent jurisdiction which makes the consummation of the Merger illegal;
the accuracy of all representations and warranties made by the parties to the Merger Agreement (subject in most cases to materiality or material adverse effect qualifications) and performance by the parties of their obligations under the Merger Agreement in all material respects, and receipt of an officer’s certificate from each party attesting thereto;
receipt by each of Kimco and WRI of an opinion to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and
the receipt by each of Kimco and WRI of an opinion regarding the other party’s qualification as a REIT.
Neither WRI nor Kimco can provide assurances that the Merger will be consummated on the terms or timeline currently contemplated, or at all.
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The Merger consideration is fixed and will not be adjusted in the event of any change in the stock prices of either Kimco or WRI.
At the effective time of the Merger, each WRI common shareholder will have the right to receive 1.408 newly issued shares of Kimco common stock plus $2.89 in cash for each WRI common share that they own immediately prior to the effective time of the Merger, subject to customary anti-dilution adjustments and any adjustment that may be made pursuant to the terms of the Merger Agreement in certain circumstances relating to a special pre-closing distribution by WRI, and with cash paid in lieu of fractional shares. The Merger consideration is fixed in the Merger Agreement, and will not be adjusted for changes in the market price of either Kimco common stock or WRI common shares. Changes in the price of Kimco common stock prior to the Merger will affect the market value of the Merger consideration that WRI shareholders will receive at the closing of the Merger. Stock price changes may result from a variety of factors (many of which are beyond the control of Kimco and WRI), including the following factors:
changes in the respective businesses, operations, assets, liabilities and prospects of either company;
changes in market assessments of the business, operations, financial position and prospects of either company;
market assessments of the likelihood that the Merger will be completed;
interest rates, general market and economic conditions and other factors, including those generally affecting the price of Kimco common stock and WRI common shares;
federal, state and local legislation, governmental regulation and legal developments in the businesses in which Kimco and WRI operate;
dividends paid by Kimco or WRI; and
other factors, including those described under this heading “Risk Factors.”
The price of Kimco common stock at the closing of the Merger may vary from its price on the date the Merger Agreement was executed, on the date of this joint proxy statement/prospectus and on the date of the special meetings of Kimco and WRI. As a result, the market value of the Merger consideration will also vary. For example, based on the range of closing prices of Kimco common stock during the period from April 14, 2021, the last trading day before public announcement of the Merger, through June 16, 2021, the latest practicable date before the date of this joint proxy statement/prospectus, the Merger consideration represented a market value per share of WRI common shares ranging from a low of $27.34 to a high of $34.12.
Because the Merger will be completed after the date of the special meetings, at the time of your special meeting, you will not know the exact market value of the Kimco common stock that WRI shareholders will receive upon completion of the Merger. You should consider, among other things, the following two risks:
if the price of Kimco common stock increases between the date the Merger Agreement was signed or the date of the WRI special meeting and the closing of the Merger, WRI shareholders will receive shares of Kimco common stock that have a market value upon completion of the Merger that is greater than the market value of such shares calculated pursuant to the exchange ratio on the date the Merger Agreement was signed or on the date of the Kimco special meeting, respectively; and
if the price of Kimco common stock declines between the date the Merger Agreement was signed or the date of the WRI special meeting and the closing of the Merger, including for any of the reasons described above, WRI shareholders will receive shares of Kimco common stock that have a market value upon completion of the Merger that is less than the market value of such shares calculated pursuant to the exchange ratio on the date the Merger Agreement was signed or on the date of the WRI special meeting, respectively.
Therefore, while the number of shares of Kimco common stock to be issued per share of WRI common shares is fixed, WRI shareholders cannot be sure of the market value of the Merger consideration they will receive upon completion of the Merger.
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Kimco stockholders and WRI shareholders will be diluted by the Merger.
The Merger will dilute the ownership position of Kimco stockholders and result in WRI shareholders having an ownership stake in Kimco that is smaller than their current stake in WRI. Upon completion of the Merger, legacy Kimco stockholders will own approximately 71% of the issued and outstanding shares of Kimco common stock, and legacy WRI shareholders will own approximately 29% of the issued and outstanding shares of Kimco common stock. Consequently, Kimco stockholders and WRI shareholders, as a general matter, will have less influence over the management and policies of Kimco after the effective time of the Merger than they currently exercise over the management and policies of Kimco and WRI, respectively.
Failure to complete the Merger could adversely affect the stock prices and the future business and financial results of Kimco and WRI.
If the Merger is not completed, the ongoing businesses of Kimco or WRI may be adversely affected and Kimco and WRI will be subject to numerous risks, including the following:
WRI being required, under certain circumstances, to pay Kimco a termination fee of $115 million in connection with the Merger;
each of Kimco and WRI having to pay substantial costs relating to the Merger, such as legal, accounting, financial advisor, filing, printing and mailing fees and integration costs that have already been incurred or will continue to be incurred until the closing of the Merger;
the management of each of Kimco and WRI focusing on the Merger instead of pursuing other opportunities that could be beneficial to the companies, in each case, without realizing any of the benefits of having the Merger completed; and
reputational harm due to the adverse perception of any failure to successfully complete the Merger.
If the Merger is not completed, Kimco and WRI cannot assure their stockholders and shareholders, respectively, that these risks will not materialize and will not materially affect the business, financial results and stock prices of Kimco or WRI.
The Merger Agreement contains provisions that could discourage a potential competing acquirer of WRI or could result in any competing proposal being at a lower price than it might otherwise be.
The Merger Agreement contains provisions that, subject to limited exceptions, restrict the ability of WRI to initiate, solicit, propose or knowingly encourage competing third-party proposals to effect, among other things, a merger, reorganization, share exchange, consolidation or a transaction or acquisition that would result in a person or group becoming the beneficial owner of 15% or more of the total voting power of any class of equity securities of WRI or 15% or more of the consolidated net revenues, net income or total assets of WRI. In addition, Kimco generally has an opportunity to offer to modify the terms of the Merger Agreement in response to any competing “acquisition proposal” (as hereinafter defined) that may be made to WRI before the WRI board of trust managers may withdraw or modify its recommendation in response to such competing acquisition proposal or terminate the Merger Agreement to enter into such a competing acquisition proposal. In some circumstances, on termination of the Merger Agreement, WRI may be required to pay a termination fee of $115 million to Kimco. For more information, see “The Merger—The Merger Agreement—Termination of the Merger Agreement—Termination Fees.”
These provisions could discourage a potential competing acquirer that might have an interest in acquiring all or a significant part of WRI from considering or proposing such an acquisition, even if it were prepared to pay consideration with a higher per share cash or market value than that market value proposed to be received or realized in the Merger, or might result in a potential competing acquirer proposing to pay a lower price than it might otherwise have proposed to pay because of the added expense of the termination fee that may become payable in certain circumstances under the Merger Agreement.
The pendency of the Merger could adversely affect the business and operations of Kimco and WRI.
In connection with the pending Merger, some of Kimco’s and WRI’s tenants or vendors may delay or defer decisions, which could adversely affect the revenues, earnings, funds from operations, cash flows and expenses of Kimco and WRI, regardless of whether the Merger is completed. Similarly, current and prospective employees
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of Kimco and WRI may experience uncertainty about their future roles with Kimco following the Merger, which may materially adversely affect the ability of each of Kimco and WRI to attract and retain key personnel during the pendency of the Merger. In addition, due to interim operating covenants in the Merger Agreement, Kimco and WRI may be unable (without the other party’s prior written consent), during the pendency of the Merger, to pursue strategic transactions, undertake significant capital projects, undertake certain significant financing transactions and otherwise pursue other actions, even if such actions would prove beneficial.
Some of the directors and executive officers of Kimco and the trust managers and executive officers of WRI have interests in seeing the Merger completed that are different from, or in addition to, those of the other Kimco stockholders and WRI shareholders, respectively.
Certain of the directors and executive officers of Kimco and trust managers and executive officers of WRI have interests in the Merger that may be different from other Kimco stockholders and WRI shareholders, respectively. For more information, see “The Merger—Interests of Kimco Directors and Executive Officers in the Merger” and “The Merger—Interests of WRI Trust Managers and Executive Officers in the Merger.
If the Merger is not consummated by January 15, 2022, either Kimco or WRI may terminate the Merger Agreement.
Either Kimco or WRI may terminate the Merger Agreement if the Merger has not been consummated by January 15, 2022. However, this termination right will not be available to a party if that party failed to fulfill its obligations under the Merger Agreement and that failure was the principal cause of, or resulted in, the failure to consummate the Merger before such date. For more information, see “The Merger—The Merger Agreement—Termination of the Merger Agreement.
Shareholder litigation could prevent or delay the closing of the Merger or otherwise negatively impact the business and operations of Kimco and WRI.
Beginning on May 28, 2021, two purported holders of WRI common shares filed substantially similar complaints against WRI and the members of the WRI board of trust managers in the United States District Court for the Southern District of New York. One of these suits also names Kimco. The complaints assert, among other things, claims under Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against WRI and the members of the WRI board of trust managers and claims under Section 20(a) of the Exchange Act against the members of the WRI board of trust managers (and, in one case, Kimco) for allegedly causing a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. In addition, beginning on June 7, 2021, two purported holders of Kimco common stock filed substantially similar complaints against Kimco and the members of the Kimco board of directors in the United States District Court for the Eastern District of New York and the United States District Court for the Southern District of New York, respectively. The complaints assert, among other things, claims under Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against Kimco and the members of the Kimco board of directors and claims under Section 20(a) of the Exchange Act against the members of the Kimco board of directors for allegedly causing a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. In addition, on June 21, 2021, a purported holder of Kimco common stock filed a complaint against Kimco and the members of the Kimco board of directors in the Supreme Court of the State of New York for the County of Westchester. The complaint asserts, among other things, claims for breach of fiduciary duty under Maryland law as well as fraudulent misrepresentation, negligent misrepresentation and concealment under New York common law against Kimco and its board of directors. The complaint alleges that Kimco and its board of directors caused a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. Among other remedies, the plaintiffs seek to enjoin the Merger.
Additional lawsuits against Kimco, WRI and/or the directors, trust managers and officers of either company in connection with the Merger may be filed. If plaintiffs are successful in obtaining an injunction prohibiting the completion of the Merger on the agreed-upon terms, then such injunction may prevent the Merger from being completed, or from being completed within the expected time frame. The defense or settlement of any lawsuit or claim may result in costs to Kimco and WRI. See “The Merger—Litigation Relating to the Merger.”
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Risks Relating to Kimco after Completion of the Merger
Kimco expects to incur substantial expenses related to the Merger.
Kimco expects to incur substantial expenses in completing the Merger and integrating the business, operations, networks, systems, technologies, policies and procedures of Kimco and WRI. While Kimco and WRI have assumed that a certain level of transaction and integration expenses would be incurred, there are a number of factors beyond their control that could affect the total amount or the timing of their integration expenses. Many of the expenses that will be incurred, by their nature, are difficult to estimate accurately at the present time. The expenses in connection with the Merger are expected to be significant, although the aggregate amount and timing of such expenses are uncertain at present.
Following the Merger, Kimco will have a substantial amount of indebtedness and may need to incur more in the future.
Kimco has substantial indebtedness and, in connection with the Merger, will incur additional indebtedness. The incurrence of new indebtedness could have adverse consequences on Kimco’s business following the Merger, such as:
requiring Kimco to use a substantial portion of its cash flow from operations to service its indebtedness, which would reduce the available cash flow to fund working capital, capital expenditures, development projects, and other general corporate purposes and reduce cash for distributions;
limiting Kimco’s ability to obtain additional financing to fund its working capital needs, acquisitions, capital expenditures, or other debt service requirements or for other purposes;
increasing Kimco’s costs of incurring additional debt;
increasing Kimco’s exposure to floating interest rates;
limiting Kimco’s ability to compete with other companies that are not as highly leveraged, as Kimco may be less capable of responding to adverse economic and industry conditions;
restricting Kimco from making strategic acquisitions, developing properties, or exploiting business opportunities;
restricting the way in which Kimco conducts its business because of financial and operating covenants in the agreements governing Kimco’s existing and future indebtedness;
exposing Kimco to potential events of default (if not cured or waived) under covenants contained in its debt instruments that could have a material adverse effect on Kimco’s business, financial condition, and operating results;
increasing Kimco’s vulnerability to a downturn in general economic conditions; and
limiting Kimco’s ability to react to changing market conditions in its industry.
The impact of any of these potential adverse consequences could have a material adverse effect on Kimco’s results of operations, financial condition, and liquidity.
Following the Merger, Kimco may be unable to integrate the business of WRI successfully or realize the anticipated synergies and related benefits of the Merger or do so within the anticipated time frame.
The Merger involves the combination of two companies which currently operate as independent public companies. Kimco will be required to devote significant management attention and resources to integrating the business practices and operations of WRI. Potential difficulties Kimco may encounter in the integration process include the following:
the inability to successfully combine the businesses of Kimco and WRI in a manner that permits Kimco to achieve the cost savings anticipated to result from the Merger, which would result in some anticipated benefits of the Merger not being realized in the time frame currently anticipated, or at all;
the inability to successfully realize the anticipated value from some of WRI’s assets, particularly from the redevelopment projects;
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lost sales and tenants as a result of certain tenants of either of Kimco or WRI deciding not to continue to do business with the combined company;
the complexities associated with integrating personnel from the two companies;
the additional complexities of combining two companies with different histories, cultures, markets, strategies and customer bases;
the failure by Kimco to retain key employees;
potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the Merger; and
performance shortfalls at one or both of the two companies as a result of the diversion of management’s attention caused by completing the Merger and integrating the companies’ operations.
For all these reasons, you should be aware that it is possible that the integration process could result in the distraction of Kimco’s management, the disruption of Kimco’s ongoing business or inconsistencies in Kimco’s services, standards, controls, procedures and policies, any of which could adversely affect the ability of Kimco to maintain relationships with tenants, customers, vendors and employees or to achieve the anticipated benefits of the Merger, or could otherwise adversely affect the business and financial results of Kimco.
The future results of Kimco will suffer if Kimco does not effectively manage its operations following the Merger.
Following the Merger, Kimco may continue to expand its operations through additional acquisitions, development opportunities and other strategic transactions, some of which involve complex challenges. The future success of Kimco will depend, in part, upon the ability of Kimco to manage its expansion opportunities, which poses substantial challenges for Kimco to integrate new operations into its existing business in an efficient and timely manner, and to successfully monitor its operations, costs, regulatory compliance and service quality, and to maintain other necessary internal controls. Kimco cannot assure you that its expansion or acquisition opportunities will be successful, or that it will realize its expected operating efficiencies, cost savings, revenue enhancements, synergies or other benefits.
The trading price of shares of Kimco common stock following the Merger may be affected by factors different from those affecting the price of shares of Kimco common stock before the Merger.
If the Merger is completed, legacy Kimco stockholders will become holders of approximately 71% of the outstanding shares of Kimco common stock and legacy WRI shareholders will become holders of approximately 29% of the outstanding shares of Kimco common stock. The results of operations of Kimco, as well as the trading price of Kimco common stock, after the Merger may be affected by factors different from those currently affecting Kimco’s results of operations and the trading prices of Kimco common stock. These factors include:
a greater number of shares of Kimco common stock outstanding, as compared to the number of shares of Kimco common stock currently outstanding;
different stockholders in Kimco; and
Kimco owning different assets and maintaining different capitalizations.
Accordingly, the historical trading prices and financial results of Kimco and WRI may not be indicative of these matters for Kimco after the Merger. For more information, see “Where You Can Find More Information.”
Counterparties to certain significant agreements with Kimco or WRI may exercise contractual rights under such agreements in connection with the Merger.
Kimco and WRI are each party to certain agreements that give the counterparty certain rights following a “change in control,” including in some cases the right to terminate such agreements. Under some such agreements, for example certain debt obligations, the Merger may constitute a change in control and therefore the counterparty may exercise certain rights under the agreement upon the closing of the Merger. Any such counterparty may request modifications of its respective agreements as a condition to granting a waiver or consent under its agreement. There is no assurance that such counterparties will not exercise their rights under
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the agreements, including termination rights where available, that the exercise of any such rights will not result in a material adverse effect or that any modifications of such agreements will not result in a material adverse effect to the combined company.
Risks Relating to the Status of Kimco and WRI as REITs
Kimco may incur adverse tax consequences if WRI has failed or fails to qualify as a REIT for U.S. federal income tax purposes.
It is a condition to the obligation of Kimco to complete the Merger that Kimco receive an opinion of counsel to the effect that, commencing with WRI’s taxable year ended December 31, 2015 and through the taxable year that ends with the effective time of the Merger, WRI has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code. The opinion will be subject to customary exceptions, assumptions and qualifications and will be based on customary representations made by WRI, and if any such representations are or become inaccurate or incomplete, such opinion may be invalid and the conclusions reached therein could be jeopardized. In addition, the opinion will not be binding on the Internal Revenue Service (which we refer to as the “IRS”) or any court, and there can be no assurance that the IRS will not take a contrary position or that such position would not be sustained. If WRI has failed or fails to qualify as a REIT for U.S. federal income tax purposes and the Merger is completed, Kimco generally would succeed to and may incur significant tax liabilities and Kimco could possibly fail to qualify as a REIT. In addition, if WRI has failed or fails to qualify as a REIT for U.S. federal income tax purposes and the Merger is completed, for the five-year period following the effective time of the Merger, upon a taxable disposition of any of WRI’s assets, Kimco generally would be subject to corporate level tax with respect to any gain in such asset at the time of the Merger.
REITs are subject to a range of complex organizational and operational requirements.
As REITs, each of Kimco and WRI must distribute to its stockholders and shareholders, respectively, with respect to each taxable year at least 90% of its REIT taxable income (which does not equal net income, as calculated in accordance with GAAP), without regard to the deduction for dividends paid and excluding net capital gain. A REIT must also meet certain requirements with respect to the nature of its income and assets and the ownership of its stock. For any taxable year that Kimco or WRI fails to qualify as a REIT, it will not be allowed a deduction for dividends paid to its stockholders or its shareholders, respectively, in computing taxable income, and thus would become subject to U.S. federal income tax as if it were a regular taxable corporation. In such an event, Kimco or WRI, as the case may be, could be subject to potentially significant tax liabilities. Unless entitled to relief under certain statutory provisions, Kimco or WRI, as the case may be, would also be disqualified from treatment as a REIT for the four taxable years following the year in which it lost its qualification, and dispositions of assets within five years after requalifying as a REIT could give rise to gain that would be subject to corporate income tax. If Kimco failed to qualify as a REIT or if WRI failed to qualify as a REIT and the Merger is completed, the market price of Kimco common stock may decline, and Kimco may need to reduce substantially the amount of distributions to its stockholders because of its potentially increased tax liability.
The tax on prohibited transactions will limit Kimco’s ability to engage in certain transactions which would be treated as prohibited transactions for U.S. federal income tax purposes.
Net income that Kimco derives from a prohibited transaction will be subject to a 100% tax rate. The term “prohibited transaction” generally includes a sale or other disposition of property that is held primarily for sale to customers in the ordinary course of Kimco’s trade or business. Kimco might be subject to this tax if it were to dispose of its property, including historic WRI properties, in a manner that was treated as a prohibited transaction for U.S. federal income tax purposes.
Risks Relating to an Investment in Kimco Common Stock following the Merger
The market price of Kimco common stock may decline as a result of the Merger.
The market price of Kimco common stock may decline as a result of the Merger if Kimco does not achieve the perceived benefits of the Merger or the effect of the Merger on Kimco’s financial results is not consistent with the expectations of financial or industry analysts.
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In addition, upon consummation of the Merger, Kimco stockholders and WRI shareholders will own interests in Kimco, which will operate an expanded business with a different mix of properties, risks and liabilities. Current stockholders of Kimco and shareholders of WRI may not wish to continue to invest in Kimco, or for other reasons may wish to dispose of some or all of their shares of Kimco common stock. If, following the effective time of the Merger, significant amounts of Kimco common stock are sold, the price of Kimco common stock could decline.
After the Merger is completed, WRI shareholders who receive shares of Kimco common stock in the Merger will have different rights that may be less favorable than their current rights as WRI shareholders.
After the effective time of the Merger, WRI shareholders who receive shares of Kimco common stock in the Merger will have different rights, which may be less favorable than their current rights as WRI shareholders. For more information, see “Comparison of Rights of Kimco Stockholders and WRI Shareholders.”
Following the Merger, Kimco may not continue to pay dividends at or above the rate currently paid by Kimco or WRI.
Following the Merger, the stockholders of Kimco may not receive dividends at the same rate that they did as stockholders of Kimco or shareholders of WRI prior to the Merger for various reasons, including the following:
Kimco may not have enough cash to pay such dividends due to changes in Kimco’s cash requirements, capital spending plans, cash flow or financial position;
decisions on whether, when and in what amounts to pay any future dividends will remain at all times entirely at the discretion of the Kimco board of directors, which reserves the right to change Kimco’s dividend practices at any time and for any reason; and
the amount of dividends that Kimco’s subsidiaries may distribute to Kimco may be subject to restrictions imposed by state law and restrictions imposed by the terms of any current or future indebtedness that these subsidiaries may incur.
Stockholders of Kimco will have no contractual or other legal right to dividends that have not been declared by the Kimco board of directors.
Other Risks
The historical and unaudited pro forma condensed combined financial information included elsewhere in this joint proxy statement/prospectus may not be representative of Kimco’s results after the Merger, and, accordingly, you have limited financial information on which to evaluate Kimco.
The unaudited pro forma condensed combined financial information included elsewhere in this joint proxy statement/prospectus has been presented for informational purposes only and is not necessarily indicative of the financial position or results of operations that actually would have occurred had the Merger been completed as of the dates indicated, nor is it indicative of the future operating results or financial position of Kimco after the Merger. The unaudited pro forma condensed combined financial information reflects adjustments, which are based upon preliminary estimates, to allocate the purchase price to WRI’s assets and liabilities. The purchase price allocation reflected in the unaudited pro forma condensed combined financial information included elsewhere in this joint proxy statement/prospectus is preliminary, and the final allocation of the purchase price will be based upon the actual purchase price and the fair value of the assets and liabilities of WRI as of the date of the completion of the Merger. The unaudited pro forma condensed combined financial information does not reflect future events that may occur after the Merger, including the costs related to the planned integration of the two companies and any future nonrecurring charges resulting from the Merger, and does not consider potential impacts of current market conditions on revenues or expense efficiencies. The unaudited pro forma condensed combined financial information presented elsewhere in this joint proxy statement/prospectus is based in part on certain assumptions regarding the Merger that Kimco and WRI believe are reasonable under the circumstances. Kimco and WRI cannot assure you that the assumptions will prove to be accurate over time.
Kimco and WRI face other risks.
The risks listed above are not exhaustive, and you should be aware that, following the Merger, Kimco will face various other risks, including those discussed in reports filed by Kimco and WRI with the SEC. For more information, see “Where You Can Find More Information.”
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This joint proxy statement/prospectus and the documents incorporated by reference into this joint proxy statement/prospectus contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act. All statements other than statements of historical fact are “forward-looking statements” for purposes of federal and state securities laws. These forward-looking statements, which are based on current expectations, estimates and projections about the industry and markets in which Kimco and WRI operate and beliefs of and assumptions made by Kimco’s management and WRI’s management, involve uncertainties that could significantly affect the financial or operating results of Kimco and WRI. Words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “will,” and variations of such words and similar expressions are intended to identify such forward-looking statements. Such forward-looking statements include, but are not limited to, statements about the benefits of the Merger, including future financial and operating results, plans, objectives, expectations and intentions. You should not rely on forward-looking statements since they involve known and unknown risks, uncertainties and other factors which are, in some cases, beyond the control of Kimco and WRI and could materially affect actual results, performances or achievements. All statements that address operating performance, events or developments that we expect or anticipate will occur in the future—including statements relating to creating value for stockholders, benefits of the proposed transactions to tenants, employees, stockholders and other constituents of the combined company, integrating our companies, cost savings and the expected timetable for completing the Merger—are forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions that are difficult to predict. Although we believe the expectations reflected in any forward-looking statements are based on reasonable assumptions, we can give no assurance that our expectations will be attained and, therefore, actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. Some of the factors that may affect outcomes and results include, but are not limited to, those set forth under “Risk Factors” beginning on page 18, as well as the following:
risks associated with the ability to consummate the Merger;
risks associated with the fixed exchange ratio;
risks associated with the dilution of Kimco stockholders and WRI shareholders in the Merger;
risks associated with provisions in the Merger Agreement that could discourage a potential competing acquirer of WRI;
risks associated with the pendency of the Merger adversely affecting the business of Kimco and WRI;
risks associated with the different interests in the Merger of certain directors and executive officers of Kimco and WRI;
risks associated with the ability of Kimco and WRI to terminate the Merger under certain circumstances, including if the Merger is not consummated by an outside date;
risks associated with the failure of the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code;
risks relating to the incurrence of substantial expenses in the Merger;
risks relating to the failure to integrate the businesses of Kimco and WRI;
risks relating to the ability of Kimco to effectively manage its expanded operations following the Merger;
risks relating to the trading price of Kimco common stock following the Merger;
risks relating to termination rights granted to counterparties pursuant to certain agreements of Kimco and WRI;
risks relating to certain other contractual rights of counterparties to agreements with Kimco or WRI;
risks relating to the failure of Kimco or WRI to qualify as a REIT;
risks relating to the complex organizational and operational requirements of REITs;
risks relating to a difference in rights of stockholders of Kimco and shareholders of WRI;
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risks relating to the ability of Kimco to pay dividends following the Merger;
risks relating to Kimco’s indebtedness after the Merger;
risks relating to the use of pro forma financial information; and
those additional risks and factors discussed in reports filed with the Securities and Exchange Commission (which we refer to as the “SEC”) by Kimco and WRI from time to time, including those discussed under the heading “Risk Factors” in their respective most recently filed reports on Forms 10-K.
Neither Kimco nor WRI undertakes any duty to update any forward-looking statements appearing in this document, except as may be required by applicable securities laws.
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INFORMATION ABOUT THE COMPANIES
Kimco Realty Corporation
500 North Broadway, Suite 201
Jericho, New York 11753
(516) 869-9000
Kimco, a Maryland corporation, is one of North America’s largest publicly traded owners and operators of open-air, grocery-anchored shopping centers and mixed-use assets in the United States. Kimco’s mission is to create destinations for everyday living that inspire a sense of community and deliver value to our many stakeholders.
Kimco is a self-administered REIT and has owned and operated open-air shopping centers for over 60 years. As of March 31, 2021, Kimco had interests in 398 shopping center properties, aggregating 69.8 million square feet of gross leasable area (which we refer to as “GLA”), located in 27 states. In addition, Kimco had 122 other property interests, primarily through Kimco’s preferred equity investments and other real estate investments, totaling 6.7 million square feet of GLA. Kimco’s ownership interests in real estate consist of its consolidated portfolio and portfolios where Kimco owns an economic interest, such as properties in Kimco’s investment real estate management programs, where Kimco partners with institutional investors and also retains management.
Kimco’s executive offices are located at 500 North Broadway, Suite 201, Jericho, New York 11753 and its telephone number is (516) 869-9000. Nearly all operating functions, including leasing, legal, construction, data processing, maintenance, finance and accounting, are administered by Kimco from its executive offices in Jericho, New York and supported by the Company’s regional offices.
Kimco common stock is listed on the New York Stock Exchange (which we refer to as the “NYSE”), trading under the symbol “KIM.”
Additional information about Kimco and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. For more information, see “Where You Can Find More Information.”
Weingarten Realty Investors
2600 Citadel Plaza Drive, Suite 125
Houston, Texas 77008
(713) 866-6000
WRI is a REIT organized under the Texas Business Organizations Code. WRI, and its predecessor entity, began the ownership of shopping centers and other commercial real estate in 1948. WRI’s primary business is leasing space to tenants in the shopping centers it owns or leases. These centers may be mixed-use properties that have both retail and residential components. WRI also provides property management services for which it charges fees to joint ventures where it is a partner. As of March 31, 2021, WRI owned or operated under long-term leases, either directly or through its interest in real estate joint ventures or partnerships, a total of 156 properties, which are located in 15 states spanning the country from coast to coast. Also as of March 31, 2021, WRI owned interests in 22 parcels of land held for development that totaled approximately 11.5 million square feet.
WRI’s principal executive offices are located at 2600 Citadel Plaza Drive, Suite 125, Houston, Texas 77008 and its telephone number is (713) 866-6000.
WRI common shares are listed on the NYSE, trading under the symbol “WRI.”
Additional information about WRI and its subsidiaries is included in documents incorporated by reference into this joint proxy statement/prospectus. For more information, see the section entitled “Where You Can Find More Information” beginning on page 139.
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THE MERGER
This section of the joint proxy statement/prospectus describes material aspects of the Merger. This summary may not contain all of the information that is important to you. You should carefully read this entire joint proxy statement/prospectus and the other documents we refer you to for a more complete understanding of the Merger. In addition, we incorporate important business and financial information about each of us into this joint proxy statement/prospectus by reference. You may obtain the information incorporated by reference into this joint proxy statement/prospectus without charge by following the instructions in the section entitled “Where You Can Find More Information.”
Background of the Merger
The Kimco board of directors, with the advice of its management team and advisors, from time to time and in the ordinary course of business, reviews and assesses the performance, business, strategic direction and prospects of Kimco, in light of the then-current industry and economic environment. As part of such assessment and review, the Kimco board of directors has evaluated and considered various financial and strategic opportunities, including potential business combinations, as part of its long-term strategy to enhance value for its stockholders.
The WRI board of trust managers, with the advice of its management team and advisors, periodically has reviewed and assessed the performance, business, strategic direction and prospects of WRI in light of the business, industry and economic environment, as well as developments in the shopping center REIT sector, including the shift in shopping patterns driven by the rapid expansion of Internet-driven procurement, which has affected many of its tenants and the retail real estate sector. The WRI board recognized that there continued to be a gap between the public value of WRI’s equity and street estimates of the net asset value of its assets. Consistent with its practice of seeking advice and assistance in reviewing and evaluating its business strategy, the WRI board and management periodically and from time to time met with its financial advisor, J.P. Morgan, to review WRI’s strategic alternatives.
Prior to 2017, members of the management teams of each of Kimco and WRI from time to time had met or otherwise communicated informally with representatives of other real estate companies and investors regarding industry trends and issues and the performance, business, strategic direction and prospects of their respective companies, including on occasion discussing the possible benefits and issues arising from potential business combinations or other strategic transactions. Representatives of the management teams of Kimco and WRI had informal communications with each other from time to time, including on an informal basis at industry events and elsewhere, and each of Kimco and WRI was generally familiar with the businesses and operations of the other company.
In April 2017, the WRI board of trust managers held a meeting at which members of WRI management and representatives of J.P. Morgan were also present and presented an update to the WRI board regarding the shopping center REIT sector landscape and WRI’s business and performance. Additionally, representatives of J.P. Morgan presented to the WRI board a preliminary analysis regarding potential combination of WRI with various strategic companies.
In July 2017, the WRI board of trust managers again held a meeting at which members of WRI management and representatives of J.P. Morgan were also present and presented a further update regarding the shopping center REIT sector landscape and WRI’s business and performance. Additionally, representatives of J.P. Morgan presented to the WRI board a review of potential strategic alternatives for WRI. Following a discussion, the WRI board directed representatives of management and J.P. Morgan to initiate outreach to strategic parties regarding their potential interest in a strategic business combination with WRI. As part of this process, in August 2017, Kimco and WRI held preliminary discussions to evaluate a potential strategic transaction involving Kimco and WRI and entered into confidentiality agreements. Kimco and WRI ultimately determined to independently pursue their respective strategic objectives and ceased discussions regarding a potential transaction between the two companies.
In February 2019, the WRI board of trust managers held a meeting at which members of WRI management and representatives of J.P. Morgan were also present. Members of J.P. Morgan provided an update to the WRI board regarding the macroeconomic landscape, perspectives on the shopping center REIT sector and real estate private capital activities. Following a discussion, the WRI board directed representatives of WRI management and J.P. Morgan
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to commence preliminary discussions with representatives of multiple parties, including Kimco and other strategic parties and institutional investors, regarding a potential business combination, although none entered into a confidentiality agreement nor made any proposal to WRI at that time.
Also in February 2019, Kimco and WRI re-engaged in exploratory discussions regarding a potential strategic transaction between Kimco and WRI and entered into confidentiality agreements. Over the course of the next few months, the companies exchanged preliminary diligence information, conducted analyses and held discussions regarding each party’s respective businesses and the potential strategic transaction. During this time, Conor C. Flynn, the Chief Executive Officer of Kimco, and Andrew M. Alexander, the Chairman of the Board, President and Chief Executive Officer of WRI, regularly updated their respective boards on the status of the exploratory discussions and diligence process.
On April 26, 2019, the WRI board of trust managers held a meeting at which members of WRI management and representatives of J.P. Morgan were also present. Members of J.P. Morgan provided an update to the WRI board regarding the shopping center REIT sector performance, status of discussions with various parties that had been approached by WRI management and J.P. Morgan, and a preliminary analysis regarding a potential combination of WRI with some of these parties, including Kimco. Following a discussion, the WRI board indicated its support of continued discussion and engagement with Kimco regarding a potential strategic transaction.
On July 22, 2019, the Kimco board of directors held a meeting at which members of Kimco management and representatives of Barclays Capital Inc. (which we refer to as “Barclays”) and Lazard Frères & Co. LLC (which we refer to as “Lazard”) were also present. Members of Kimco management provided an update to the Kimco board regarding the status of discussions with WRI with respect to a potential strategic transaction between Kimco and WRI and the diligence process conducted to date. Representatives of Barclays and Lazard presented to the Kimco board a preliminary analysis regarding WRI and a potential combination of WRI and Kimco, including relative trading analyses, among others. Following further discussion, the Kimco board supported continued discussion and engagement with WRI regarding a potential strategic transaction.
In August and September 2019, Kimco continued to conduct diligence and analysis on WRI.
On September 19, 2019, Messrs. Flynn and Alexander held a call regarding the status of discussions between the two companies. Messrs. Flynn and Alexander agreed to re-engage following release of each company’s financial results for the third quarter of 2019.
In October 2019, the chief executive officer of a publicly-traded shopping center REIT, which we refer to as Party A, approached representatives of J.P. Morgan regarding a potential business combination with WRI and requested a meeting with WRI management, and Party A entered into a confidentiality agreement, received information regarding WRI and proposed a stock-for-stock merger of equals transaction.
On October 29, 2019, the WRI board held a meeting at which members of WRI management and representatives of J.P. Morgan were also present. Members of J.P. Morgan provided an update to the WRI board regarding the shopping center REIT sector performance and preliminary analysis regarding potential combinations of WRI with Kimco and Party A. Following further discussion, the WRI board indicated its support of continued discussion and engagement with Kimco and Party A regarding a potential strategic transaction.
On October 31, 2019 and November 5, 2019, representatives of J.P. Morgan, at the direction of the WRI board, requested through representatives of Kimco and Party A, respectively, that each such company submit a written proposal for a business combination with WRI.
Following this request from WRI for a proposal, Mr. Flynn updated the Kimco board regarding this request. After discussion, the Kimco board determined that Kimco should submit a written proposal to WRI providing for an acquisition of WRI by Kimco.
On November 7, 2019, consistent with the recommendation of the Kimco board, representatives of Kimco submitted a written offer letter (the “November 7, 2019 Offer”) to representatives of WRI, which offer letter provided for an acquisition of WRI by Kimco for total consideration per WRI common share of 1.3885 shares of Kimco common stock plus $3.30 in cash.
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On November 12, 2019, representatives of WRI submitted a written response to the November 7, 2019 Offer (the “November 12, 2019 Response”) to representatives of Kimco, which response proposed an acquisition of WRI by Kimco pursuant to which each WRI shareholder would receive a total consideration per share equivalent to 1.650 shares of Kimco common stock.
On November 15, 2019, representatives of Party A indicated to J.P. Morgan that Party A had completed their analysis of a strategic transaction with WRI and Party A was of the view that it could not offer a compelling proposal.
On November 19, 2019, the WRI board held a meeting at which members of WRI management and representatives of J.P. Morgan were also present. Members of J.P. Morgan provided an update to the WRI board regarding the status of responses received to date from Kimco and Party A, and informed the WRI board of Party A’s determination to not pursue a strategic transaction with WRI and that Kimco had not yet responded to the November 12, 2019 Response.
On November 19, 2019, representatives of Kimco informed representatives of WRI that Kimco did not intend to provide a counterproposal to the November 12, 2019 Response, and the companies again determined to independently pursue their respective strategic objectives and ceased discussions regarding a potential transaction between the two companies.
In July 2020, Messrs. Flynn and Alexander held a call to discuss potentially re-engaging in discussions regarding a strategic transaction between the two companies. They discussed the benefits that they believed a combination of the two companies could bring to each company and their respective shareholders, including increased scale and complementary portfolios and a greater presence in growth markets. Messrs. Flynn and Alexander also discussed the potential form and structure that such a strategic transaction could take, building on prior conversations between the companies. Among other things, Messrs. Flynn and Alexander discussed the current economic environment and its impact on the operation and performance of their respective businesses and other businesses in the open-air shopping center and mixed use real estate industries. Following this call, Messrs. Flynn and Alexander updated their respective boards regarding this discussion.
On August 10, 2020, Milton Cooper, the Executive Chairman of Kimco, and Marc Shapiro, a member of the WRI board, had a meeting during which they discussed the potential benefits that a combination of the two companies could bring and the potential economic terms of a combination between the two companies, building on the framework discussed by Messrs. Flynn and Alexander. They agreed that a successful combination of the two companies had the potential to create a premier portfolio with stronger financial results than either company on a stand-alone basis and an attractive footprint in their respective markets, including the Sun Belt. Messrs. Cooper and Shapiro agreed that it would be beneficial for Kimco and WRI to continue to analyze a potential strategic transaction and consider restarting more detailed discussions and diligence between the companies. Following this call, Mr. Cooper updated the Kimco board of directors and Mr. Shapiro updated the WRI board of trust managers regarding this discussion.
In December 2020, Mr. Alexander engaged in discussions with representatives of Party B and Party C. Also in December 2020, Messrs. Flynn and Alexander held a call to discuss updated market conditions and the potential for the companies to re-engage in discussions regarding a potential strategic transaction. They discussed, among other things, their continued belief in the benefits of a combination of the companies and the potential to reach agreement on the economics of a combination, including in light of recent market conditions.
Following this conversation, Mr. Alexander held a series of discussions with WRI trust managers and its advisors to update them on the discussion with Mr. Flynn during which WRI trust managers indicated support in re-engaging in discussions with Kimco regarding a potential business combination.
On January 25, 2021, the Kimco board held a regular telephonic meeting at which members of Kimco management and representatives of Barclays and Lazard were also present. Members of Kimco management provided an update to the Kimco board regarding the recent discussions with WRI and the rationale for a potential combination of the companies. Representatives of Barclays and Lazard reviewed financial aspects of a possible strategic transaction with WRI, including a preliminary analysis of potential structural and economic terms of such a combination, building upon the prior conversations that representatives of Kimco had held with representatives of WRI. The Kimco board discussed the possible benefits and risks of a strategic combination
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with WRI to the Kimco stockholders and other key constituencies and compared a potential transaction with WRI to other possible alternatives, investments and business strategies. After further discussion, the Kimco board approved re-engaging in discussions with WRI to explore a potential acquisition of WRI.
On January 27, 2021, Mr. Flynn contacted Mr. Alexander by telephone to propose that the companies re-engage in discussions regarding a potential acquisition of WRI by Kimco, including sharing more detailed diligence information and engaging in discussions between members of each company’s respective management teams. Mr. Alexander confirmed that he had held discussions with members of the WRI board and its advisors and WRI was interested in re-engaging in such discussions.
On February 11, 2021, Kimco and WRI entered into confidentiality agreements to facilitate the sharing of further diligence information between the companies.
Over the next three weeks, Kimco engaged in due diligence on WRI, including projections prepared by WRI management. During this time, Messrs. Flynn and Alexander continued their discussions with respect to the terms of the potential transaction. Members of Kimco and WRI management regularly updated their respective boards during this period regarding these discussions.
On February 17, 2021, the WRI board held a meeting at which members of WRI management and representatives of J.P. Morgan were also present and provided an update to the WRI board regarding discussions with management of certain WRI peer companies who had expressed an interest in a combination with WRI, with none such discussions meeting WRI’s current objectives. In addition, representatives of J.P. Morgan provided an update on the shopping center REIT sector landscape, peer performance throughout 2020 and perspectives on various public and private companies who may potentially have an interest in a strategic transaction with WRI.
In March 2021, at the direction of Mr. Alexander, who had consulted with other WRI board members regarding this matter, representatives of WRI management and J.P. Morgan contacted another publicly-traded shopping center REIT, which we refer to as Party B, to determine Party B’s interest in exploring a strategic transaction with WRI.
On March 5, 2021, representatives of Kimco submitted a written proposal to representatives of WRI with respect to a potential strategic transaction between the companies (the “March 5 Proposal”). The March 5 Proposal provided for an acquisition by Kimco of WRI for consideration per WRI common share equal to 1.35 shares of Kimco common stock, plus $2.80 in cash.
Following the March 5 Proposal, representatives of Kimco and WRI and their respective financial advisors continued discussions and engaged in further detailed financial diligence. Members of Kimco and WRI management regularly updated their respective boards during this period regarding these discussions.
During the week of March 8, 2021, representatives of WRI and Party B engaged in discussions regarding a business combination during which Party B indicated it had interest in further evaluating such a transaction. On March 9, 2021, WRI entered into a confidentiality agreement with Party B and Party B was provided with due diligence information regarding WRI.
Between March 9 and March 22, 2021, Party B continued to evaluate the diligence information it had been provided regarding WRI and continued to have discussions with WRI management and J.P. Morgan regarding the business performance of WRI.
On March 11, 2021, the WRI board held a special meeting at which members of WRI management and representatives of J.P. Morgan and Dentons US LLP (which we refer to as “Dentons”), WRI’s legal counsel, were also present. Representatives of Dentons discussed with the WRI board various legal matters, including the trust managers’ fiduciary duties. Representatives of management and J.P. Morgan updated the WRI board regarding the recent discussions with Kimco and other companies, including Party B, as well as the terms of the March 5 Proposal and informed the WRI board that Party B continued to evaluate a business combination transaction with WRI. J.P. Morgan also reviewed preliminary strategic and financial considerations relevant to the WRI board’s evaluation of the March 5 Proposal, including potential benefits and considerations presented by potential alternatives such as continuing to pursue WRI’s current business plan and engaging in a business combination with a party other than Kimco. After further discussion, the WRI board expressed support for continuing discussions and negotiations with Kimco, Party B and other potential strategic transaction partners.
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On March 12, 2021, representatives of J.P. Morgan were contacted by a publicly-traded shopping center REIT, which we refer to as Party C, to discuss the shopping center landscape and explore the merits of a business combination with WRI, although WRI did not enter into a confidentiality agreement with Party C nor did Party C make a proposal to WRI.
Between March 15 and March 18, 2021, representatives of WRI had several discussions with representatives of Kimco, during which representatives of WRI communicated to representatives of Kimco that the March 5 Proposal was insufficient and that it was WRI’s board’s expectation that Kimco would provide an enhanced proposal. Representatives of Kimco communicated to representatives of WRI that in order for Kimco to consider improving its proposal, Kimco’s board had requested feedback on a potential counterproposal that may be satisfactory to WRI’s board.
On March 18, 2021, the WRI board held another special meeting at which members of WRI management and representatives of J.P. Morgan and Dentons were also present. Members of WRI management and J.P. Morgan updated the WRI board regarding discussions with Kimco regarding the March 5 Proposal and with Party B, and informed the WRI board that Party B indicated it was in the process of evaluating a potential business combination with WRI and expected to respond on or about March 22, 2021. WRI’s management and advisors also discussed with the WRI board their proposed due diligence plan for Kimco, including scope and timing, should the WRI board determine to further explore the proposed transaction with Kimco. The WRI board further discussed with the advisors and management the perceived financial prospects of WRI and Kimco, the possible benefits of the potential transaction and the exchange ratio proposed in the March 5 Proposal. Following discussion of such matters, the WRI board determined to respond to Kimco that the WRI board believed additional value for WRI shareholders could be achieved, and to engage in further discussion with Party B.
On March 19, 2021, consistent with the recommendation of the WRI board, representatives of WRI communicated to representatives of Kimco a counterproposal for an acquisition by Kimco of WRI for consideration per WRI common share equal to 1.35 shares of Kimco common stock plus $4.15 in cash. Representatives of WRI also communicated to representatives of Kimco that WRI board would be open to incremental consideration coming in the form of additional cash or Kimco common stock.
On March 22, 2021, representatives of Kimco submitted a revised written proposal to representatives of WRI with respect to a potential strategic transaction between the companies (the “March 22 Proposal”). The March 22 Proposal provided for an acquisition by Kimco of WRI for consideration per WRI common share equal to 1.377 shares of Kimco common stock plus $2.88 in cash. As part of March 22 Proposal, Kimco sought a 30-day exclusivity agreement with WRI.
On March 22, 2021, representatives of WRI had a discussion with Party B to get an update on Party B’s review of a potential transaction with WRI. Party B informed representatives of WRI that it continued to evaluate a potential transaction and requested additional access to management of WRI to conduct further diligence on WRI.
On March 23, 2021, Messrs. Flynn and Alexander held a call during which they discussed the terms of the March 22 Proposal and the updated diligence information that had been provided to date, as well as the continued discussions between members of the management teams of the respective companies. Mr. Alexander informed Mr. Flynn that the March 22 Proposal was insufficient and proposed an acquisition of WRI by Kimco for total consideration per WRI common share of 1.35 shares of Kimco common stock plus $4.00 in cash. Mr. Alexander also communicated to Mr. Flynn that WRI board would be open to incremental consideration coming in the form of additional cash or Kimco common stock.
On March 23, 2021, Mr. Flynn sent a revised written proposal (“March 23 Proposal”) to Mr. Alexander whereby Kimco would acquire WRI for total consideration per WRI common share of 1.408 shares of Kimco common stock plus $2.89 in cash. As part of March 23 Proposal, Mr. Flynn included a draft of a 30-day exclusivity agreement between Kimco and WRI. Mr. Flynn also communicated to Mr. Alexander that the companies should exchange drafts of definitive transaction documents and finalize diligence with the goal of announcing the transaction by mid-April, subject to the results of such diligence and further discussion with and approval of each company’s board.
On March 24, 2021, management and representatives of WRI held a business diligence session with management and representatives of Party B.
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On March 24, 2021, representatives of WRI communicated to representatives of Kimco that WRI was prepared to move forward with conducting confirmatory mutual diligence and negotiations on the definitive transaction documentation on an expedited basis, but was not willing to enter into an exclusivity agreement with Kimco.
Later on March 24, 2021, representatives of Kimco communicated to representatives of WRI that Kimco had agreed to proceed with negotiations on the definitive transaction documentations and completion of confirmatory diligence without an exclusivity agreement.
On March 27, 2021, representatives of WRI had a discussion with management of Party B to get an update on Party B’s evaluation of a potential transaction with WRI.
On March 31, 2021, representatives of Wachtell, Lipton, Rosen & Katz (which we refer to as “Wachtell Lipton”), Kimco’s legal counsel, circulated a draft merger agreement to representatives of Dentons. The draft merger agreement reflected a merger of WRI with and into Kimco, with Kimco surviving the merger, and consideration per WRI common share of 1.408 shares of Kimco common stock plus $2.89 in cash.
On April 2, 2021, a representative of Party A called Mr. Alexander to discuss the potential for a combination of Party A and WRI. There were no subsequent discussions between Party A and WRI regarding a strategic transaction.
Over the following two weeks, Kimco and WRI engaged in mutual diligence and discussions, including telephonic diligence calls between the management teams of both companies, and documentary legal, financial and operational diligence through virtual data rooms. During this period, WRI also continued discussions with Party B.
Following discussions between Dentons and members of WRI’s management team and financial advisor, on April 5, 2021, representatives of Dentons circulated a revised draft of the merger agreement to representatives of Wachtell Lipton.
Following discussion between Wachtell Lipton and members of Kimco’s management team regarding the draft merger agreement, on April 7, 2021, representatives of Wachtell Lipton and Dentons held a call in which various terms of the merger agreement were discussed, including the scope of the representations and warranties of both parties, the restrictions on each party’s operations during the period between execution and closing, including dividends payable by each company, the ability for WRI to terminate the agreement to accept a superior proposal and related fiduciary provisions and the termination fee that would be payable by WRI under certain circumstances.
Following this discussion, on April 8, 2021, representatives of Wachtell Lipton sent a revised draft of the merger agreement to representatives of Dentons.
On April 11, 2021, representatives of Wachtell Lipton sent a draft of the form of voting agreement to representatives of Dentons.
Also on April 11, 2021, a representative of an institutional investor, which we refer to as Party D, approached representatives of J.P. Morgan to express interest in exploring a potential acquisition of WRI.
On April 12, 2021, representatives of J.P. Morgan, at the direction of the WRI board, had further discussions with representatives of Party D about a potential acquisition of WRI by Party D. WRI did not enter into a confidentiality agreement with Party D as representatives of Party D informed representatives of J.P. Morgan that Party D would use publicly available information on WRI to determine whether Party D would make a proposal to WRI.
On April 12, 2021, the WRI board held a special meeting at which members of WRI management and representatives of Dentons were also present. Members of WRI management and Dentons updated the WRI board regarding the proposed terms of the merger agreement with Kimco, including with respect to the matters discussed by legal representatives of the parties on April 7, and the proposed timeline for the announcement of a transaction with Kimco. Representatives of WRI management informed the WRI board that Party B would provide an update later in the day or the following day on their level of interest and that preliminary discussions had been held with representatives of Party D regarding a strategic transaction. The trust managers also discussed the potential engagement of J.P. Morgan as WRI’s financial advisor, noting, among other things, J.P. Morgan’s
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familiarity with WRI and the proposed transaction, experience and reputation generally and in the REIT industry specifically and taking into account the relationship with J.P. Morgan to date and that J.P. Morgan had provided a relationship disclosure letter to the WRI board prior to the meeting. The trust managers concluded that WRI should continue to work with J.P. Morgan in connection with the proposed transaction with Kimco, subject to formalizing the engagement of J.P. Morgan if the transaction were to proceed.
Subsequent to the April 12, 2021 WRI board meeting, Party B informed representatives of WRI that Party B was not interested in entering into a strategic transaction with WRI at that time.
Over the course of April 8 through April 12, 2021, representatives of Wachtell Lipton and Dentons and members of management of Kimco and WRI, including Messrs. Flynn and Alexander, worked to finalize the draft merger agreement and voting agreements, and representatives of Wachtell Lipton and Dentons exchanged drafts reflecting these discussions. Messrs. Flynn and Alexander agreed on a framework whereby WRI would be permitted to terminate the merger agreement to accept a superior proposal subject to a termination fee equal to 3% of WRI’s equity value. Messrs. Flynn and Alexander also agreed that WRI would be permitted to pay a regularly quarterly cash dividend of up to $0.23 per share for the first quarterly dividend payment following the execution of the merger agreement, and $0.30 per share for each quarter thereafter, subject to provisions regarding the coordination of record and payment dates. Representatives of Wachtell Lipton sent an updated draft of the merger agreement reflecting this framework to representatives of Dentons on April 12, 2021. On April 13, 2021, representatives of Wachtell Lipton also sent a first draft of Kimco’s disclosure schedules to representatives of Dentons.
On April 13, 2021, the Kimco board held a telephonic special meeting to review the status of the negotiations of the draft merger agreement and proposed transaction. Members of Kimco management and representatives of Barclays, Lazard and Wachtell Lipton were also present. Mr. Flynn reported that Kimco management had completed its due diligence review of WRI and had come to agreement with WRI on the principal economic and structural terms of the proposed transaction. Representatives of Wachtell Lipton advised the Kimco board of directors on its fiduciary duties and provided an overview of the principal terms of the transaction agreements and an update on the negotiation of the transaction agreements, including that the substantive terms of the merger agreement and the voting agreements were substantially in agreed form, subject to review of WRI’s disclosure schedules. Representatives of Barclays and Lazard gave updated presentations regarding various financial aspects of the proposed transaction. Following further discussion regarding the terms and potential benefits and considerations regarding the proposed transaction, the Kimco board of directors approved the finalization of the transaction documents and preparation for an announcement of the potential transaction, subject to approval by the Kimco board of directors of the final terms of the proposed transaction.
Also on April 13, 2021, representatives of Party D informed representatives of WRI that Party D was not interested in exploring a strategic transaction with WRI at that time.
On April 14, 2021, representatives of Kimco and WRI worked to finalize the merger agreement and disclosure schedules. Also on April 14, 2021, representatives of Dentons sent a first draft of the WRI disclosure schedules to representatives of Wachtell Lipton.
On April 14, 2021, the Kimco board held a telephonic special meeting to review the status of the negotiations of the draft merger agreement and proposed transaction. Members of Kimco management and representatives of Barclays, Lazard and Wachtell Lipton were also present. Mr. Flynn provided an update to the Kimco board regarding the finalization of the transaction documents and that the respective teams were on track to announce the execution of the merger agreement prior to the market open on April 15, 2021, subject to the approval of the Kimco board of directors and the WRI board of trust managers. Representatives of Wachtell Lipton provided an overview of the status of the transaction agreements, including that the merger agreement was in agreed form, subject to finalizing the parties’ respective disclosure schedules. Representatives of Barclays and Lazard then delivered their respective oral opinions to the Kimco board of directors, which were subsequently confirmed in writing, that, as of that date, and based upon and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Barclays and Lazard, respectively, as set forth in their respective written opinions, the Merger consideration to be paid by Kimco pursuant to the Merger Agreement is fair, from a financial point of view, to Kimco. Representatives of Wachtell Lipton then discussed and reviewed with the Kimco board of directors the proposed resolutions to authorize the proposed transaction. At the conclusion of the meeting, after careful review
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and discussion by the Kimco board of directors, including consideration of the factors described below under “The Merger—Kimco’s Reasons for the Merger; Recommendations of the Kimco Board of Directors,” the Kimco board of directors unanimously (i) approved the Merger Agreement and the transactions contemplated thereby, including the Merger, (ii) declared the Merger Agreement and such transactions to be advisable and in the best interest of Kimco, (iii) resolved to recommend to the common stockholders of Kimco that they approve the Merger and (iv) directed that the proposal to adopt the Merger be submitted to a vote of the common stockholders of Kimco entitled to vote thereon at a special meeting of the common stockholders of Kimco.
Also on April 14, 2021, the WRI board held a special meeting, with representatives of WRI’s management, J.P. Morgan and Dentons in attendance. At the meeting, representatives of Dentons advised the WRI board on its fiduciary duties and provided an overview of the principal terms of the transaction agreements and an update on the negotiation of the transaction agreements, including that the substantive terms of the merger agreement and the voting agreements were substantially in agreed form, subject to review of Kimco’s disclosure schedules. J.P. Morgan then reviewed with the WRI board J.P. Morgan’s financial analysis of the Merger consideration provided for in the Merger Agreement and delivered to the WRI board of trust managers its April 14, 2021 oral opinion, which was confirmed by delivery of a written opinion, dated April 14, 2021, to the effect that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing the opinion, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders, as more fully described below in the section entitled “—Opinion of WRI’s Financial Advisor” beginning on page 54 of this Joint Proxy Statement/Prospectus. After considering the proposed terms of the Merger Agreement and the other transaction documents and taking into consideration a variety of factors, including those described in “The Merger—WRI’s Reasons for the Merger; Recommendations of the WRI Board of Trust Managers,” the WRI board resolved that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement were advisable and in the best interests of WRI and its shareholders, authorized WRI to enter into the Merger Agreement, directed that the Merger be submitted to WRI shareholders for approval at a meeting of WRI shareholders, and resolved to recommend that WRI shareholders vote in favor of the approval of the Merger.
Following the meetings of the Kimco and WRI boards, the parties finalized the transaction documents.
On the morning of April 15, 2021, before market open, Messrs. A. Alexander and S. Alexander, Kimco and WRI executed the voting agreements, and Kimco and WRI executed the Merger Agreement and issued a joint press release announcing the Merger.
Kimco’s Reasons for the Merger; Recommendations of the Kimco Board of Directors
After careful consideration at a meeting held on April 14, 2021, the Kimco board of directors unanimously (i) approved the Merger Agreement and the transactions contemplated thereby, including the Merger, (ii) declared the Merger Agreement and such transactions to be advisable and in the best interest of Kimco, (iii) resolved to recommend to the common stockholders of Kimco that they approve the Kimco Merger Proposal and (iv) directed that the Kimco Merger Proposal be submitted to a vote of the common stockholders of Kimco entitled to vote thereon at a special meeting of the common stockholders of Kimco.
In the course of evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger, the Kimco board of directors consulted with Kimco management and Kimco’s legal and financial advisors and considered a number of factors that the Kimco board of directors believed supported its decision to approve the Merger Agreement and the transactions contemplated thereby, including the Merger, including the following material factors:
its belief that the strategic and transformative nature of the Merger will result in Kimco becoming the preeminent open-air shopping center and mixed-use real estate owner in the United States;
its expectation that, following the Merger, Kimco will have a national operating portfolio of approximately 559 open-air grocery-anchored shopping centers and mixed-use assets comprising approximately 100 million square feet of gross leasable area, primarily concentrated in the top major metropolitan markets in the United States;
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its views on macroeconomic and industry trends, including a potential trend towards consolidation in the Sun Belt open-air shopping center and mixed-use real estate market to develop larger and more diverse companies with expanded portfolios, greater tenant diversity and geographic reach and enhanced access to capital markets;
its expectation that the transaction will grow Kimco’s presence in strategic Sun Belt markets with positive demographic and migration trends along with strong growth prospects;
its expectation that the transaction will result in greater tenant diversity, with the top 10 tenant brands of the combined portfolio expected to comprise approximately 19.3% of total annual base rent, with no single tenant representing more than approximately 4%;
its expectation that the combination of Kimco and WRI presents compelling growth opportunities, including by combining WRI’s largely funded and de-risked development pipeline with Kimco’s significant redevelopment projects and entitlements embedded in its existing portfolio;
its expectation that the combination of Kimco and WRI will provide improved efficiencies, including substantial synergy opportunities, given the 85% geographic overlap between the two companies in major metropolitan areas based on annual base rent;
its expectation that, following the Merger, Kimco will achieve increased scale, reduced leverage, improved liquidity and expanded access to capital, and will be better positioned to absorb market cycles;
its expectation that, upon completion of the Merger, legacy Kimco common stockholders will own approximately 71% of the Kimco common stock;
its belief that the businesses of Kimco and WRI are highly complementary and that the integration of the two companies will be completed in a timely and efficient manner with minimal disruption to tenants and other stakeholders;
its expectation that the Merger will be immediately accretive to earnings metrics and will result in annualized cost synergies of approximately $35 to $38 million on a GAAP basis (excluding accounting adjustments) and $31 to $34 million on a cash basis, which are expected to be substantially realized in the first full fiscal year post completion of the transaction;
that, pursuant to the mutual agreement of Kimco and WRI, following the Merger, the Kimco board of directors is expected to have eight members, consisting of the existing members of the Kimco board of directors;
the Merger Agreement’s provisions requiring WRI to pay Kimco a termination fee of $115 million if the Merger Agreement is terminated under certain circumstances. For more information, see “—The Merger Agreement—Termination of the Merger Agreement” and “—The Merger Agreement—No Solicitation”;
the historical and then-current trading prices and volumes of each of Kimco common stock and WRI common shares;
the fact that the Merger consideration under the Merger Agreement is fixed (i.e., it will not be adjusted for fluctuations in the market price of Kimco common stock or WRI common shares), creating certainty as to the number of shares of Kimco common stock to be issued and cash consideration to be paid;
that each of Andrew M. Alexander and Stanford J. Alexander, who collectively beneficially own approximately 5.4% of the outstanding WRI common shares would enter into voting agreements that would provide, subject to the terms and conditions thereof, for each of Messrs. A. Alexander and S. Alexander, solely in his capacity as a shareholder of WRI, to vote the WRI common shares he owns in favor of the Merger Agreement and against any alternative acquisition proposal;
the written opinions of each of Barclays and Lazard delivered to the Kimco board of directors to the effect that, as of April 14, 2021 and based upon and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review
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undertaken by Barclays and Lazard, respectively, as set forth in their respective written opinions, the Merger consideration to be paid by Kimco pursuant to the Merger Agreement is fair, from a financial point of view, to Kimco. For more information, see “—Opinion of Kimco’s Financial Advisors”; and
the other terms and conditions of the Merger Agreement.
The Kimco board of directors also considered a number of risks and other factors identified in its deliberations as weighing negatively against the Merger, including the following:
the risk of not capturing all of the anticipated estimated annualized cost synergies and the risk that other anticipated benefits of the transactions might not be realized on the expected timeframe or at all;
the challenges of combining Kimco with WRI, including technical, operational, accounting and other challenges, and the risk of diverting management resources for an extended period of time to accomplish this combination;
the restrictions on the conduct of Kimco’s business during the period between execution of the Merger Agreement and the consummation of the Merger. For more information, see “—The Merger Agreement—Conduct of Business Pending the Merger”;
the fact that projections of future results of operations are necessarily estimates based on assumptions. For more information, see “—Certain Unaudited Prospective Financial Information”;
the possibility that the Merger may not be completed, or that completion may be unduly delayed, including for reasons beyond the control of Kimco or WRI;
the risk that the Kimco stockholders may fail to approve the Kimco Merger Proposal or that WRI shareholders may fail to approve the WRI Merger Proposal;
the potential that the fixed Merger consideration could result in Kimco delivering greater value to WRI shareholders than had been anticipated by Kimco stockholders should the value of Kimco common stock, relative to WRI common shares, increase disproportionately from the date of the Merger Agreement;
the substantial costs to be incurred in connection with the Merger, including the costs of integrating the businesses of Kimco and WRI and the transaction expenses arising from the Merger;
the ownership dilution to legacy Kimco stockholders as a result of the issuance of Kimco common stock pursuant to the Merger Agreement;
the Merger Agreement’s provisions preventing Kimco from changing its recommendation to the Kimco stockholders to approve the Kimco Merger Proposal;
the Merger Agreement’s provisions permitting WRI to terminate the Merger Agreement in order to enter into a superior proposal upon payment by WRI to Kimco of a termination fee of $115 million. For more information, see “—The Merger Agreement—Termination of the Merger Agreement”;
the risk that payment by WRI to Kimco of a termination fee of $115 million if the Merger Agreement is terminated under certain circumstances may not be sufficient to fully compensate Kimco for its losses in such circumstances. For more information, see “—The Merger Agreement—Termination of the Merger Agreement” and “—The Merger Agreement—No Solicitation”;
the risk that failure to complete the Merger could negatively affect the price of Kimco common stock and future business and financial results of Kimco; and
the potential risk of diverting management focus and resources from operational matters and other strategic opportunities while working to implement the Merger.
The Kimco board of directors concluded that the potentially negative factors associated with the Merger were outweighed by the potential benefits that it expected the Kimco stockholders would achieve as a result of the Merger. Accordingly, the Kimco board of directors determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, were in the best interests of Kimco.
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The foregoing discussion of the factors considered by the Kimco board of directors is not intended to be exhaustive, but, rather, includes the material factors considered by the Kimco board of directors. In reaching its decision to approve the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, the Kimco board of directors did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. The Kimco board of directors considered all these factors as a whole, including discussions with, and questioning of, Kimco management and Kimco’s financial and legal advisors, and overall considered the factors to be favorable to, and to support, its determination.
This explanation of Kimco’s reasons for the Merger and the other information presented in this section is forward-looking in nature and should be read in light of the sections herein entitled “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements.”
The Kimco board of directors unanimously recommends to Kimco stockholders that they vote “FOR” the Kimco Merger Proposal.
WRI’s Reasons for the Merger; Recommendations of the WRI Board of Trust Managers
After consideration, the WRI board of trust managers, by a unanimous vote of all trust managers, at a meeting held on April 14, 2021, approved the Merger Agreement and the transactions contemplated thereby, including the Merger. In the course of evaluating the Merger Agreement and the transactions contemplated thereby, the WRI board of trust managers consulted with WRI’s management and legal and financial advisors and considered a number of factors that the WRI board of trust managers believed supported its decision to approve the Merger Agreement and accordingly recommend the approval by WRI shareholders of the Merger, including the following material factors:
Strategic and Financial Considerations. The WRI board of trust managers believes that the Merger will provide a number of strategic and financial benefits that have the potential to create additional value for WRI shareholders, including the following:
the combination of WRI and Kimco is expected to result in the creation of the preeminent open-air shopping center and mixed-use real estate owner in the United States;
the combination of WRI and Kimco is expected to provide greater geographical diversity and diversity of high-quality tenants, thereby mitigating risk;
the combined company is expected to have a flexible and strong balance sheet, with the ability to pursue appropriate growth opportunities and the potential for improved credit ratings and a lower cost of debt capital;
the combination of WRI and Kimco is expected to generate corporate and operational cost savings;
the combination of WRI and Kimco is expected to result in improved liquidity for WRI shareholders as a result of the increased equity capitalization and more dispersed stockholder base of the combined company;
the Merger consideration provides an attractive valuation relative to WRI’s net asset value;
the combination of WRI’s development pipeline with Kimco’s redevelopment pipeline on a larger and more diversified operating base, together with the depth and experience of the Kimco management team, is expected to improve execution and mitigate risk; and
the transaction will combine the similar business models and asset mixes of WRI and Kimco while creating a best-in-class platform capable of delivering sustained growth and value creation.
Participation in Future Appreciation. The Merger consideration will be paid in part in shares of Kimco common stock, which will provide WRI shareholders with the opportunity to participate in the benefits of the Merger and any potential appreciation of Kimco common stock following the Merger;
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Premium Over Share Trading Price. The value of shares of Kimco common stock that WRI shareholders will receive in the Merger, as adjusted by the Merger consideration, represents a premium of approximately 11%, based on the closing prices per share of WRI common shares and Kimco common stock on April 14, 2021 (the last trading day before the WRI board of trust managers approved the merger);
Fixed Exchange Ratio. The exchange ratio is fixed and will not fluctuate as a result of changes in the price of Kimco common stock or WRI common shares prior to the effective time of the Merger, which means that the market value of the Merger consideration could increase prior to the effective time of the Merger if the trading price of Kimco common stock increases;
Tax-Free Transaction. Kimco and WRI intend for the Merger to qualify as a tax-free reorganization for U.S. federal income tax purposes, and if the Merger so qualifies, then U.S. holders of WRI common shares generally will not recognize any gain or loss for U.S. federal income tax purposes upon the receipt of the Merger consideration, except with respect to the cash Merger consideration of $2.89 per WRI common share and any cash in lieu of fractional shares of Kimco common stock;
Superior Proposals. The WRI board of trust managers has the ability, under certain circumstances and subject to certain conditions specified in the Merger Agreement, to consider and respond to unsolicited bona fide acquisition proposals with respect to WRI and to engage in negotiations with persons making any such acquisition proposal and to terminate the Merger Agreement in order to enter into a superior proposal (as defined in “The Merger Agreement—No Solicitation”), subject to certain notice requirements and the requirement that WRI pays a $115 million termination fee to Kimco. The WRI board of trust managers evaluated, in consultation with WRI’s legal and financial advisors, the amount of termination fee payable by WRI in circumstances specified in the Merger Agreement, and determined that such fee is reasonable and would not unduly impede the ability of a third party to make a superior proposal;
Opinion and Analyses of J.P. Morgan. The April 14, 2021, oral opinion of J.P. Morgan delivered to the WRI board of trust managers, which was confirmed by delivery of a written opinion, dated April 14, 2021, to the effect that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders, as more fully described below in the section entitled “—Opinion of WRI’s Financial Advisor.” The full text of the written opinion of J.P. Morgan, dated April 14, 2021, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex E to this Joint Proxy Statement/Prospectus and is incorporated herein by reference;
Knowledge of Businesses. The WRI board of trust managers’ familiarity with the business, operations, financial condition, earnings and prospects of WRI and its knowledge regarding Kimco, including information obtained through WRI’s due diligence review of Kimco, as well as its knowledge of the current and prospective environment in which WRI and Kimco operate and related industry, economic and market conditions and trends;
Kimco Management Depth and Experience. The existing Kimco senior management team has extensive experience in real estate operations and a proven track record of successfully executing Kimco’s redevelopment plans;
Consulting Arrangement to Advise Kimco. The fact that the Chairman of the WRI board of trust managers will be engaged by Kimco to help to oversee the ongoing equity investment of WRI shareholders and providing an opportunity for the combined company to benefit from his insights and experience;
Equal Merger Consideration for All Shareholders. The fact that all WRI shareholders would receive the same per share Merger consideration;
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Support from the Key Shareholders. In connection with the Merger Agreement, Andrew M. Alexander and Stanford J. Alexander would each enter into a voting agreement to vote the WRI common shares they own of record or beneficially in favor of the Merger; and
High Likelihood of Consummation. The WRI board of trust managers deems it highly likely that the Merger will be completed in a timely manner given the likelihood the approvals of Kimco stockholders and WRI shareholders would be obtained, the commitment of both parties to complete the Merger pursuant to their respective obligations under the Merger Agreement, the absence of any significant closing conditions under the Merger Agreement (other than the requisite stockholder and shareholder approvals) and the absence of any financing contingency.
The WRI board of trust managers also considered various risks and other potentially negative factors concerning the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement, including the following:
the exchange ratio is fixed and will not fluctuate as a result of changes in the price of Kimco common stock or WRI common shares prior to the effective time of the Merger, which means that the market value of the Merger consideration could decrease prior to the effective time of the Merger if the trading price of Kimco common stock decreases;
the fact that WRI shareholders will not have the opportunity to continue participating in WRI’s potential upside as a standalone company, but rather will participate in WRI’s upside as a part of the combined company;
the possibility that the Merger or the other transactions contemplated by the Merger Agreement may not be completed, or that their completion may be delayed for reasons that are beyond the control of WRI or Kimco, including the failure of WRI shareholders or Kimco stockholders to approve the Merger, or the failure of WRI or Kimco to satisfy other requirements that are conditions to closing the Merger;
the risk that failure to complete the Merger could negatively affect the price of WRI common shares and/or the future business and financial results of WRI;
the potential diversion of management focus and resources from operational matters and other strategic opportunities and the risk of any loss or change in the relationship of WRI with its employees, tenants and other business relationships while the Merger is pending;
the risk of not realizing all of the anticipated strategic and financial benefits of the Merger within the expected time frame or at all and that WRI shareholders will be subject to future financial, business and operational risks associated with the combined company;
the substantial costs to be incurred in connection with the transaction, including the costs of integrating the businesses of WRI and Kimco, and the transaction expenses arising from the Merger;
the terms of the Merger Agreement placing certain limitations on the ability of WRI to initiate, solicit, propose or knowingly encourage any inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an acquisition proposal, or to provide any nonpublic information in connection with any inquiry, proposal or offer that would reasonably be expected to lead to an acquisition proposal (unless such third party has made an unsolicited bona fide written acquisition proposal that constitutes or is reasonably likely to result in a superior proposal and such third party enters into a confidentiality agreement with WRI having provisions that are no less favorable to WRI than those contained in the confidentiality agreement between WRI and Kimco);
the obligation to pay Kimco a termination fee of $115 million if the Merger Agreement is terminated under certain circumstances;
the restrictions on the conduct of WRI’s business between the date of the Merger Agreement and the effective time of the Merger; and
the other factors described in the section entitled “Risk Factors.”
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In addition to the factors described above, the WRI board of trust managers considered the fact that some of WRI’s trust managers and executive officers have other interests in the Merger that may be different from, or in addition to, the interests of WRI’s shareholders generally, as discussed in the section entitled “—Interests of WRI Trust Managers and Executive Officers in the Merger.”
The above discussion of the factors considered by the WRI board of trust managers is not intended to be exhaustive, but does set forth material factors considered by the WRI board of trust managers. In light of the wide variety of factors considered in connection with its evaluation of the Merger and the other transactions contemplated by the Merger Agreement and the complexity of these matters, the WRI board of trust managers did not consider it practicable to, and did not attempt to, quantify or otherwise assign relative or specific weight or values to any of these factors, and individual trust managers may have held varied views of the relative importance of the factors considered. The WRI board of trust managers viewed its position and recommendation as being based on an overall review of the totality of the information available to it and considered these factors in the aggregate to be favorable to, and to support, its determination regarding the Merger.
This explanation of WRI’s reasons for the Merger and other information presented in this section is forward-looking in nature and should be read in light of the section of this joint proxy statement/prospectus entitled “Cautionary Statement Regarding Forward-Looking Statements.”
For the reasons set forth above, the WRI board of trust managers unanimously declared that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement are advisable and in the best interests of WRI and its shareholders and unanimously approved the Merger Agreement. The WRI board of trust managers unanimously recommends to WRI’s shareholders that they vote “FOR” the WRI Merger Proposal, “FOR” the WRI Compensation Proposal and “FOR” the WRI Adjournment Proposal.
Opinion of Kimco’s Financial Advisors
Opinion of Barclays Capital Inc.
Kimco engaged Barclays to act as its financial advisor in connection with the Merger, pursuant to an engagement letter dated April 14, 2021. On April 14, 2021, Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Kimco board of directors that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the consideration to be paid by Kimco in the Merger was fair, from a financial point of view, to Kimco.
The full text of Barclays’ written opinion, dated as of April 14, 2021, is attached as Annex C to this joint proxy statement/prospectus. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety. The following is a summary of Barclays’ opinion and the methodology that Barclays used to render its opinion. This summary is qualified in its entirety by reference to the full text of the opinion.
Barclays’ opinion, the issuance of which was approved by Barclays’ Valuation and Fairness Opinion Committee, is addressed to the board of directors of Kimco, addresses only the fairness, from a financial point of view, of the consideration to be paid by Kimco and does not constitute a recommendation to any shareholder of Kimco as to how such shareholder should vote with respect to the Merger or any other matter. The terms of the Merger were determined through arm’s-length negotiations between Kimco and WRI and were unanimously approved by the Kimco board of directors. Barclays did not recommend any specific form of consideration to Kimco or that any specific form of consideration constituted the only appropriate consideration for the proposed transaction. Barclays was not requested to address, and its opinion does not in any manner address, Kimco’s underlying business decision to proceed with or effect the Merger, the likelihood of the consummation of the Merger, or the relative merits of the Merger as compared to any other transaction in which Kimco may engage. In addition, Barclays expressed no opinion on, and its opinion does not in any manner address, the fairness of the amount or the nature of any compensation to any officers, directors or employees of any parties to the Merger, or any class of such persons, relative to the consideration to be paid in the Merger. No limitations were imposed by the Kimco board of directors upon Barclays with respect to the investigations made or procedures followed by it in rendering its opinion.
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In arriving at its opinion, Barclays, among other things:
reviewed and analyzed a draft of the Merger Agreement, dated as of April 14, 2021 and the specific terms of the Merger;
reviewed and analyzed publicly available information concerning Kimco and WRI that Barclays believed to be relevant to its analysis, including their respective Annual Reports on Form 10-K for the fiscal year ended December 31, 2020;
reviewed and analyzed financial and operating information with respect to the business, operations and prospects of Kimco furnished to Barclays by Kimco, including financial projections of Kimco prepared by management of Kimco, which financial projections are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “Kimco Projections”);
reviewed and analyzed financial and operating information with respect to the business, operations and prospects of WRI furnished to Barclays by Kimco, including financial projections of WRI prepared by management of WRI and approved for Barclays’ use by Kimco, which financial projections are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “WRI Projections”);
reviewed and analyzed the pro forma impact of the Merger on the future financial performance of the combined company, including cost savings, operating synergies and other strategic benefits expected by the management of Kimco to result from a combination of the businesses (which we refer to as the “Expected Synergies”);
reviewed and analyzed a trading history of the Kimco common stock and WRI common shares from December 31, 2018 to April 13, 2021 and a comparison of that trading history with those of other companies that Barclays deemed relevant;
reviewed and analyzed published estimates of independent research analysts with respect to the future financial performance and price targets of Kimco and WRI;
reviewed and analyzed a comparison of the historical financial results and present financial condition of Kimco and WRI with each other and with those of other companies that Barclays deemed relevant;
reviewed and analyzed a comparison of the financial terms of the Merger with the financial terms of certain other transactions that Barclays deemed relevant;
had discussions with the management of Kimco and WRI concerning their respective businesses, operations, assets, liabilities, financial condition and prospects; and
has undertaken such other studies, analyses and investigations as Barclays deemed appropriate.
In arriving at its opinion, Barclays assumed and relied upon the accuracy and completeness of the financial and other information used by Barclays without any independent verification of such information (and had not assumed responsibility or liability for any independent verification of such information) and had further relied upon the assurances of the management of Kimco that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Kimco Projections, upon the advice of Kimco, Barclays assumed that such projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Kimco as to the future financial performance of Kimco and that Kimco would perform substantially in accordance with such projections. With respect to the WRI Projections, upon the advice of Kimco, Barclays assumed that such projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of WRI as to the future financial performance of WRI and that WRI would perform substantially in accordance with such projections. Furthermore, upon the advice of Kimco, Barclays assumed that the amounts and timing of the Expected Synergies were reasonable and that the Expected Synergies would be realized in accordance with such estimates. Barclays assumed no responsibility for and expressed no view as to any such projections or estimates or the assumptions on which they were based. In arriving at its opinion, Barclays did not conduct a physical inspection of the properties and facilities of Kimco or WRI and did not make or obtain any evaluations or appraisals of the assets or liabilities of Kimco or WRI. Barclays expressed no opinion or view as to the potential effects of volatility in the credit, financial and stock markets on Kimco, WRI or the Merger. Barclays’ opinion
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was necessarily based upon market, economic and other conditions as they existed on, and could be evaluated as of, April 14, 2021. Barclays assumed no responsibility for updating or revising its opinion based on events or circumstances that may have occurred after April 14, 2021. Barclays expressed no opinion as to the prices at which (i) the Kimco common stock or the WRI common shares would trade following the announcement of the Merger or (ii) the Kimco common stock would trade at any time following the consummation of the Merger.
Barclays assumed that the executed Merger Agreement would conform in all material respects to the last draft reviewed by Barclays. Additionally, Barclays assumed the accuracy of the representations and warranties contained in the Merger Agreement and all the agreements related thereto. Barclays also assumed, upon the advice of Kimco, that all material governmental, regulatory and third party approvals, consents and releases for the Merger would be obtained within the constraints contemplated by the Merger Agreement and that the Merger will be consummated in accordance with the terms of the Merger Agreement without waiver, modification or amendment of any material term, condition or agreement thereof. Barclays assumed, upon the advice of Kimco, that the Merger would qualify for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. Barclays did not express any opinion as to any tax or other consequences that might result from the Merger, nor did Barclays’ opinion address any legal, tax, regulatory or accounting matters, as to which Barclays understood Kimco had obtained such advice as it deemed necessary from qualified professionals.
In connection with rendering its opinion, Barclays performed certain financial, comparative and other analyses as summarized below. In arriving at its opinion, Barclays did not ascribe a specific range of values to the Kimco common stock, but rather, made its determination as to fairness, from a financial point of view, to Kimco of the consideration to be paid by Kimco in the Merger on the basis of various financial and comparative analyses. The preparation of a fairness opinion is a complex process and involves various determinations as to the most appropriate and relevant methods of financial and comparative analyses and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to summary description.
In arriving at its opinion, Barclays did not attribute any particular weight to any single analysis or factor considered by it, but rather, made qualitative judgments as to the significance and relevance of each analysis and factor relative to all other analyses and factors performed and considered by it and in the context of the circumstances of the particular transaction. Accordingly, Barclays believes that its analyses must be considered as a whole, as considering any portion of such analyses and factors, without considering all analyses and factors as a whole, could create a misleading or incomplete view of the process underlying its opinion.
Summary of Material Financial Analyses
The following is a summary of the material financial analyses used by Barclays in preparing its opinion to the Kimco board of directors. The summary of Barclays’ analyses and reviews provided below is not a complete description of the analyses and reviews underlying Barclays’ opinion. The preparation of a fairness opinion is a complex process involving various determinations as to the most appropriate and relevant methods of analysis and review and the application of those methods to particular circumstances, and, therefore, is not readily susceptible to summary description.
For the purposes of its analyses and reviews, Barclays made numerous assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of Kimco or WRI. No company, business or transaction considered in Barclays’ analyses and reviews is identical to Kimco, WRI or the Merger, and an evaluation of the results of those analyses and reviews is not entirely mathematical. Rather, the analyses and reviews involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the acquisition, public trading or other values of the companies, businesses or transactions considered in Barclays’ analyses and reviews. None of Kimco, WRI, Barclays or any other person assumes responsibility if future results are materially different from those discussed. Any estimates contained in these analyses and reviews and the ranges of valuations resulting from any particular analysis or review are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of companies, businesses or securities do not purport to be appraisals or reflect the prices at which the companies, businesses or securities may actually be sold. Accordingly, the estimates used in, and the results derived from, Barclays’ analyses and reviews are inherently subject to substantial uncertainty.
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The summary of the financial analyses and reviews summarized below include information presented in tabular format. In order to fully understand the financial analyses and reviews used by Barclays, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses and reviews. Considering the data in the tables below without considering the full description of the analyses and reviews, including the methodologies and assumptions underlying the analyses and reviews, could create a misleading or incomplete view of Barclays’ analyses and reviews.
Selected Comparable Company Analysis
In order to assess how the public market values shares of similar publicly traded companies and to provide a range of relative implied equity values per share of Kimco common stock and per WRI common share by reference to those companies, Barclays reviewed and compared specific financial and operating data relating to Kimco and WRI, respectively, with selected companies that Barclays, based on its experience in the real estate industry, deemed comparable to Kimco and WRI, respectively. The selected comparable companies with respect to Kimco were:
Regency Centers Corporation
SITE Centers Corporation
Retail Properties of America, Inc.
Retail Opportunity Investments Corporation
Urban Edge Properties
Kite Realty Group Trust
WRI
The selected comparable companies with respect to WRI were:
Regency Centers Corporation
SITE Centers Corporation
Retail Properties of America, Inc.
Retail Opportunity Investments Corporation
Urban Edge Properties
Kite Realty Group Trust
Kimco
Barclays calculated and compared various financial multiples and ratios of Kimco, WRI and the selected comparable companies. As part of its selected comparable company analysis, Barclays calculated and analyzed each company’s (i) ratio of its current stock price to its 2021 estimated funds from operations per share (which we refer to as the “FFO multiple”) based on Wall Street research consensus estimates and (ii) ratio of cash net operating income divided by the gross value of its operating real estate implied by the total enterprise value of the company (which we refer to as the “implied capitalization rate”). All of these calculations were performed, and based on publicly available financial data and closing prices, as of April 13, 2021, the last trading date prior to the delivery of Barclays’ opinion. The results of this selected comparable company analysis are summarized below:
 
Low
High
Median
Mean
(excl. Kimco)
Mean
(excl. WRI)
2021 FFO Multiple
13.4x
19.0x
16.0x
16.1x
16.1x
Implied Capitalization Rate
5.2%
7.1%
6.2%
6.2%
6.2%
Barclays selected the comparable companies listed above because their businesses and operating profiles are reasonably similar to that of Kimco or WRI, as applicable. However, because of the inherent differences between the business, operations and prospects of Kimco and WRI, as applicable and those of the selected comparable companies, Barclays believed that it was inappropriate to, and therefore did not, rely solely on the quantitative
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results of the selected comparable company analysis. Accordingly, Barclays also made qualitative judgments concerning differences between the business, financial and operating characteristics and prospects of Kimco or WRI, as applicable and the selected comparable companies that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis. These qualitative judgments related primarily to the differing sizes, leverage, geographic footprint, growth prospects, profitability levels and degree of operational risk between Kimco or WRI, as applicable and the companies included in the selected company analysis.
Kimco Standalone Valuation. Based upon the analysis described above and its professional judgment, Barclays selected a range of FFO multiples of 14.0x to 18.0x for Kimco and applied such range to Kimco’s projected 2021 FFO as adjusted per share, as set out in the Kimco Projections, to calculate a range of implied prices per share of Kimco common stock of $17.60 to $22.70. Based upon its professional judgments, Barclays also selected a range of implied capitalization rates of 5.75% to 6.50% for Kimco and applied such range to Kimco’s projected 2021 cash net operating income, as set out in the Kimco Projections, to calculate a range of implied prices per share of Kimco common stock of $17.40 to $21.10.
WRI Standalone Valuation. Based upon the analysis described above and its professional judgment, Barclays selected a range of FFO multiples of 14.0x to 18.0x for WRI and applied such range to WRI’s projected 2021 FFO per share, as set out in the WRI Projections, to calculate a range of implied prices per WRI common share of $24.20 to $31.10 (which we refer to as the “WRI implied FFO range”). Based upon its professional judgments, Barclays also selected a range of implied capitalization rates of 5.75% to 6.50% for WRI and applied such range to WRI’s projected 2021 cash net operating income, as set out in the WRI Projections, to calculate a range of implied prices per WRI common share of $25.20 to $30.10 (which we refer to as the “WRI implied capitalization rate range”). Barclays noted that the implied per share Merger consideration (as calculated and defined below) of $30.59 was within the WRI implied FFO range and above the WRI implied capitalization rate range.
For purposes of its opinion, Barclays calculated the implied value, as of April 13, 2021, of the Merger consideration per WRI common share to be $30.59 (which we refer to as the “implied per share Merger consideration”), which was determined by adding the cash portion of the Merger consideration of $2.89 per WRI common share to $27.70, the implied value of the stock portion of the Merger consideration per WRI common share, which was derived by multiplying the closing price of $19.67 per share of Kimco common stock on April 13, 2021, the last trading day prior to the announcement of the Merger, by the exchange ratio of 1.408 shares of Kimco common stock per WRI common share.
Selected Precedent Transaction Analysis
Barclays reviewed and compared the purchase prices and financial multiples paid in selected other transactions that Barclays, based on its experience with merger and acquisition transactions, deemed relevant. Barclays chose such transactions based on, among other things, the similarity of the applicable constituent companies in the transactions to Kimco and WRI with respect to the size, property type, asset quality, geographic exposure and other characteristics of their businesses.
The reasons for and the circumstances surrounding each of the selected precedent transactions analyzed were diverse and there are inherent differences in the business, operations, financial conditions and prospects of Kimco, WRI and the companies included in the selected precedent transaction analysis. Accordingly, Barclays believed that a purely quantitative selected precedent transaction analysis would not be particularly meaningful in the context of considering the Merger. Barclays therefore made qualitative judgments concerning differences between the characteristics of the selected precedent transactions and the Merger. The following table sets forth the transactions analyzed based on such characteristics:
Announcement Date
Acquiror
Target
11/14/2016
Regency Centers Corporation
Equity One, Inc.
12/15/2015
DRA Advisors LLC
Inland Real Estate Corporation
4/10/2015
Blackstone
Excel Realty Trust, Inc.
10/31/2014
Edens Investment Trust
AmREIT, Inc.
2/27/2007
Centro Properties Group
New Plan Excel Realty Trust, Inc.
7/9/2006
Kimco
Pan Pacific Retail Properties, Inc.
7/9/2006
Centro Watt
Heritage Property Investment Trust Inc.
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Based upon its professional judgments discussed above, Barclays selected a range of FFO multiples of 15.0x to 19.0x and applied such range to WRI’s projected 2021 FFO per share, as set out in the WRI Projections, to calculate a range of implied prices per WRI common share of $26.00 to $32.90 (which we refer to as the “WRI precedent transaction implied FFO range”). Barclays noted that the implied per share Merger consideration of $30.59 was within the WRI precedent transaction implied FFO range.
Discounted Cash Flow Analysis
In order to estimate the present value of the Kimco common stock and WRI common shares, Barclays performed a discounted cash flow analysis of Kimco and WRI. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset by calculating the “present value” of estimated future cash flows of the asset. “Present value” refers to the current value of future cash flows or amounts and is obtained by discounting those future cash flows or amounts by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.
Kimco Standalone Valuation. To calculate the estimated enterprise value of Kimco using the discounted cash flow method, Barclays (i) added Kimco’s projected after-tax unlevered free cash flows for fiscal years 2021 through 2025 based on the Kimco Projections to the “terminal value” of Kimco as of December 31, 2025, (ii) discounted such amount to its present value using a range of selected discount rates, and then (iii) added to this amount the current market value of Kimco’s investment in Albertsons Companies Inc. (“Albertsons”). The after-tax unlevered free cash flows were calculated by taking the projected total cash net operating income and adding management fee and investment income (excluding projected dividends from the Albertsons investment), subtracting general and administrative and corporate expenses, tenant improvements, leasing commissions and recurring capital expenditures, adjusting for the impact of acquisitions, dispositions, redevelopment, development and the monetization of structured investments, and incorporating changes in working capital and other adjustments. The residual value of Kimco at the end of the forecast period, or “terminal value,” was estimated by applying a range of perpetuity growth rates of 2.75% to 3.25%, which was derived based on Barclay’s professional judgement, taking into account, among other things, the trends in the economy generally and in the industries and sectors in which Kimco operates, to the Kimco Projections. The range of after-tax discount rates of 7.25% to 7.75% was selected based on an analysis of the weighted average cost of capital of Kimco and the comparable companies. Barclays then calculated a range of implied prices per share of Kimco by (A) (i) subtracting estimated total debt and preferred equity, (ii) adding cash, each as of December 31, 2020, from the estimated enterprise value using the discounted cash flow method (after adding the market value, as of April 13, 2021, of Kimco’s investment in Albertsons) and (B) dividing such amount by the fully diluted number of shares of Kimco common stock. These calculations resulted in a range of implied price per share of $16.00 to $22.70.
WRI Standalone Valuation. To calculate the estimated enterprise value of WRI using the discounted cash flow method, Barclays added (i) WRI’s projected after-tax unlevered free cash flows for fiscal years 2021 through 2025 based on the WRI Projections to (ii) the “terminal value” of WRI as of December 31, 2025, and discounted such amount to its present value using a range of selected discount rates. The after-tax unlevered free cash flows were calculated by taking the projected total cash net operating income and subtracting general and administrative and corporate expenses, tenant improvements, broker fees and recurring capital expenditures, adjusting for the impact of acquisitions, dispositions, redevelopment and development, and incorporating changes in working capital and other adjustments. The residual value of WRI at the end of the forecast period, or “terminal value,” was estimated by applying a range of perpetuity growth rates of 3.25% to 3.75%, which was derived based on Barclay’s professional judgement, taking into account, among other things, the trends in the economy generally and in the industries and sectors in which WRI operates, to the WRI Projections. The range of after-tax discount rates of 7.75% to 8.25% was selected based on an analysis of the weighted average cost of capital of WRI and the comparable companies. Barclays then calculated a range of implied prices per share of WRI by (A) (i) subtracting estimated total debt and (ii) adding estimated cash, each as of December 31, 2020, from the estimated enterprise value using the discounted cash flow method and (B) dividing such amount by the fully diluted number of WRI common shares. These calculations resulted in a range of implied price per share of $23.60 to $32.50 (which we refer to as the “WRI DCF range”). Barclays noted that the implied per share Merger consideration of $30.59 was within the WRI DCF range.
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General
Barclays is an internationally recognized investment banking firm and, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. The Kimco board of directors selected Barclays because of its familiarity with Kimco and its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions generally, as well as substantial experience in transactions comparable to the Merger.
Barclays is acting as financial advisor to Kimco in connection with the proposed transaction. As compensation for its services in connection with the proposed transaction, Kimco paid Barclays $1,500,000 upon the delivery of Barclays’ opinion, which is referred to as the “Opinion Fee,” which amount is credited against the fees described below. The Opinion Fee was not contingent upon the conclusion of Barclays’ opinion or the consummation of the Merger. Base compensation of $12,000,000, plus an additional fee of up to $4,000,000 payable in Kimco’s sole discretion, will be payable on completion of the Merger against which the Opinion Fee will be credited. In addition, Kimco has agreed to reimburse Barclays for a portion of its reasonable out-of-pocket expenses incurred in connection with the Merger and to indemnify Barclays for certain liabilities that may arise out of its engagement by Kimco and the rendering of Barclays’ opinion. Barclays has performed various investment banking and financial services for Kimco and WRI in the past, and expects to perform such services in the future, and has received, and expects to receive, customary fees for such services. Specifically, in the past two years, Barclays or its affiliates have performed the following investment banking and financial services: (i) having acted as joint book-running manager on Kimco’s $350 million notes offering in August 2019; (ii) having acted as sales agent under Kimco’s $500 million equity at-the-market program established in September 2019; (iii) having acted as co-manager on Kimco’s $500 million notes offering in July 2020; (iv) having acted as co-manager on Kimco’s $400 million notes offering in August 2020; and (v) having served as a lender under Kimco’s existing credit facility. Barclays has not performed any investment banking or financial services for WRI for which it has earned fees in the past two years.
Barclays and its affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other financial and non-financial services. In the ordinary course of its business, Barclays and affiliates may actively trade and effect transactions in the equity, debt and/or other securities (and any derivatives thereof) and financial instruments (including loans and other obligations) of Kimco and WRI for its own account and for the accounts of its customers and, accordingly, may at any time hold long or short positions and investments in such securities and financial instruments.
Opinion of Lazard Frères & Co. LLC
Kimco has retained Lazard as its financial advisor in connection with the Merger. In connection with this engagement, Kimco requested that Lazard evaluate the fairness, from a financial point of view, to Kimco of the Merger consideration to be paid by Kimco in the Merger. On April 14, 2021, at a meeting of the Kimco board of directors held to evaluate the Merger, Lazard rendered to the Kimco board of directors an oral opinion, which was subsequently confirmed by delivery of a written opinion dated April 14, 2021, to the effect that, as of that date and based on and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken described in such opinion, the Merger consideration to be paid by Kimco in the Merger was fair, from a financial point of view, to Kimco.
The full text of Lazard’s written opinion, dated April 14, 2021, which describes the assumptions made, procedures followed, matters considered, and qualifications and limitations on the review undertaken, is attached as Annex D to this joint proxy statement/prospectus and is incorporated herein by reference. The summary of the written opinion of Lazard, dated April 14, 2021, set forth in this joint proxy statement/prospectus is qualified in its entirety by reference to the full text of Lazard’s written opinion attached as Annex D. Lazard’s opinion was for the benefit of the Kimco board of directors (in its capacity as such) and Lazard’s opinion was rendered to the Kimco board of directors in connection with its evaluation of the Merger and did not address any terms or other aspects (other than the Merger consideration to the extent expressly specified in Lazard’s opinion) of the Merger. Lazard’s opinion did not address the relative merits of the Merger as compared to any other transaction or business strategy in which Kimco might engage or the
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merits of the underlying decision by Kimco to engage in the Merger. Lazard’s opinion is not intended to and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act with respect to the Merger or any matter relating thereto.
In connection with its opinion, Lazard:
reviewed the financial terms and conditions of a draft, dated April 14, 2021 of the Merger Agreement;
reviewed certain publicly available historical business and financial information relating to WRI and Kimco;
reviewed various financial forecasts and other data prepared by WRI relating to the business of WRI, which are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “WRI Projections”), financial forecasts and other data prepared by Kimco relating to the business of Kimco, which are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “Kimco Projections”) and the projected cost savings, operating synergies and other strategic benefits, including the amount and timing thereof, anticipated by the management of Kimco to be realized from the Merger;
held discussions with members of the senior managements of WRI and Kimco with respect to the businesses and prospects of WRI and Kimco, respectively, and with members of the senior management of Kimco with respect to the projected cost savings, operating synergies and other strategic benefits, including the amount and timing thereof, anticipated by the management of Kimco to be realized from the Merger;
reviewed public information with respect to certain other companies in lines of business Lazard believed to be generally relevant in evaluating the businesses of WRI and Kimco, respectively;
reviewed the financial terms of certain business combinations involving companies in lines of business Lazard believed to be generally relevant in evaluating the businesses of WRI and Kimco, respectively;
reviewed historical stock prices and trading volumes of the WRI common shares and the Kimco common stock;
reviewed the potential pro forma financial impact of the Merger on Kimco based on the WRI Projections and the Kimco Projections and the projected cost savings, operating synergies and other strategic benefits, anticipated by the management of Kimco to be realized from the Merger; and
conducted such other financial studies, analyses and investigations as Lazard deemed appropriate.
Lazard assumed and relied upon the accuracy and completeness of the foregoing information, without independent verification of such information. Lazard did not conduct any independent valuation or appraisal of any of the assets or liabilities (contingent or otherwise) of WRI or Kimco or concerning the solvency or fair value of WRI or Kimco, and Lazard was not furnished with any such valuation or appraisal. With respect to the financial forecasts utilized in Lazard’s analyses, including those related to projected cost savings, operating synergies and other strategic benefits anticipated by the management of Kimco to be realized from the Merger, Lazard assumed, with the consent of Kimco, that they were reasonably prepared on bases reflecting the best currently available estimates and judgments as to the future financial performance of WRI and Kimco, respectively, and such cost savings, operating synergies and other strategic benefits. In addition, Lazard assumed, with the consent of Kimco, that such financial forecasts and projected cost savings, operating synergies and other strategic benefits would be realized in the amounts and at the times contemplated thereby. Lazard assumed no responsibility for and expressed no view as to any such forecasts or the assumptions on which they are based, including with respect to the potential effects of the COVID-19 pandemic on such forecasts or assumptions.
Further, Lazard’s opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Lazard as of, the date of its opinion. Lazard assumed no responsibility for updating or revising its opinion based on circumstances or events occurring after the date of its opinion. Lazard further noted that volatility and disruption in the credit and financial markets relating to, among other things, the COVID-19 pandemic, may or may not have an effect on WRI or Kimco and Lazard did not express an opinion as to the effects of such volatility or such disruption on either of them. Lazard did not express any opinion as to the prices at which the WRI common shares or Kimco common stock may trade at any
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time subsequent to the announcement of the Merger. In addition, Lazard’s opinion did not address the relative merits of the Merger as compared to any other transaction or business strategy in which Kimco might engage or the merits of the underlying decision by Kimco to engage in the Merger.
In rendering its opinion, Lazard assumed, with the consent of Kimco, that the Merger will be consummated on the terms described in the Merger Agreement, without any waiver or modification of any terms or conditions material to Lazard’s analyses. Representatives of Kimco advised Lazard, and it assumed, that the Merger Agreement, when executed, would conform to the draft reviewed by Lazard in all respects material to its analysis. Lazard also assumed, with the consent of Kimco, that obtaining any necessary governmental, regulatory or third-party approvals and consents for the Merger will not have an adverse effect on WRI, Kimco or the Merger. Lazard further assumed, with the consent of Kimco, that the Merger will qualify for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended. Lazard did not express any opinion as to any tax or other consequences that might result from the Merger, nor does its opinion address any legal, tax, regulatory or accounting matters, as to which Lazard understood that Kimco obtained such advice as it deemed necessary from qualified professionals. Lazard expressed no view or opinion as to any terms or other aspects (other than the Merger consideration to the extent expressly specified in Lazard’s opinion) of the Merger, including, without limitation, the form or structure of the Merger or any agreements or arrangements entered into in connection with, or contemplated by, the Merger. In addition, Lazard expressed no view or opinion as to the fairness of the amount or nature of, or any other aspects relating to, the compensation to any officers, directors or employees of any parties to the Merger, or class of such persons, relative to the Merger consideration or otherwise.
Lazard’s engagement and its written opinion were for the benefit of the Kimco board of directors (in its capacity as such) and its written opinion was rendered to the Kimco board of directors in connection with its evaluation of the transaction. Lazard’s opinion is not intended to and does not constitute a recommendation to any shareholder as to how such shareholder should vote or act with respect to the transaction or any matter relating thereto. The issuance of Lazard’s opinion was approved by the Opinion Committee of Lazard.
Summary of Lazard’s Financial Analyses
In preparing its opinion to the Kimco board of directors, Lazard performed a variety of financial and comparative analyses. The summary set forth below does not purport to be a complete description of the financial analyses performed or factors considered by, and underlying Lazard’s opinion, nor does the order of the financial analyses described represent the relative importance or weight given to those financial analyses. The preparation of a financial opinion or analysis is a complex process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion or analysis is not readily susceptible to summary description. In arriving at its opinion, Lazard considered the results of all of the analyses undertaken by it and assessed as a whole and did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis considered by it. Rather, Lazard made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of the analyses. Accordingly, Lazard believes that its analyses and factors summarized below must be considered as a whole and in context. Lazard further believes that selecting portions of its analyses and factors or focusing on information presented in tabular format, without considering all analyses and factors or the narrative description of the analyses and factors, could create a misleading or incomplete view of the processes underlying its analyses and opinion.
In performing its analyses, Lazard considered industry performance, general business, economic, market and financial conditions and other matters, existing as of the date of its opinion, many of which are beyond the control of Kimco and WRI. No company, business or transaction reviewed is identical or directly comparable to Kimco, WRI or their respective businesses or the Merger. Accordingly, an evaluation of these analyses is not entirely mathematical. Rather, the analyses involve complex considerations and judgments concerning business, financial and operating characteristics and other factors that could affect the public trading, acquisition or other values of the companies, businesses or transactions reviewed or views regarding the comparability of such companies, businesses or transactions. Accordingly, such analyses may not necessarily include all companies, businesses or transactions that could be deemed relevant. The estimates of the future performance of WRI and Kimco in or underlying Lazard’s analyses and the ranges of valuations resulting from any particular analysis are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those estimates or those suggested by the analyses. In addition, analyses relating to
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the value of businesses or securities do not purport to be appraisals or to reflect the prices at which a company may actually be sold or the prices at which any securities have traded or may trade at any time in the future. Accordingly, the assumptions and estimates used in, and the ranges of valuations resulting from, any particular analysis described below are inherently subject to substantial uncertainty and should not be taken as the views of Lazard regarding the actual values of WRI or Kimco. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before April 14, 2021, and is not necessarily indicative of current market conditions.
Lazard did not recommend that any specific consideration constituted the only appropriate consideration in the Merger. The type and amount of Merger consideration payable in the transaction was determined through negotiations between Kimco and WRI, rather than by any financial advisor, and was approved by the Kimco board of directors. The decision to enter into the Merger Agreement was solely that of the Kimco board of directors and the WRI board of trust managers. Lazard’s opinion and analyses were only one of many factors considered by the Kimco board of directors in its evaluation of the Merger and the Merger consideration and should not be viewed as determinative of the views of the Kimco board of directors or management with respect to the Merger or the Merger consideration payable in the Merger.
Financial Analyses
The summary of the financial analyses described in this section entitled “Financial Analyses” is a summary of the material financial analyses provided by Lazard in connection with its opinion, dated April 14, 2021, to the Kimco board of directors. The summary set forth below is not a comprehensive description of all analyses undertaken by Lazard in connection with its opinion, nor does the order of the analyses in the summary below indicate that any analysis was given greater weight than any other analysis. The financial analyses summarized below include information presented in tabular format. In order to fully understand Lazard’s financial analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses performed by Lazard. Considering the data set forth in the tables below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of the financial analyses performed by Lazard. Future results may differ from those described and such differences may be material.
For purposes of the financial analyses described below in this section, the term “implied per share Merger consideration” means $30.59 per common share of WRI, calculated as (i) the cash consideration of $2.89 per common share of WRI plus (ii) the implied value of the stock consideration of $27.70 per common share of WRI based on the 1.408x per share exchange ratio and an illustrative reference closing price for shares of Kimco common stock of $19.67 per share as of April 13, 2021. Financial data utilized for Kimco and WRI in the financial analyses described below, to the extent based on internal financial forecasts and estimates of management, were based on the Kimco Projections and the WRI Projections.
Kimco Financial Analyses
Discounted Cash Flow Analysis. Lazard performed a discounted cash flow analysis of Kimco by calculating, based on the Kimco Projections, the estimated present value (as of December 31, 2020) of the stand-alone unlevered, after-tax free cash flows that Kimco was forecasted to generate during the fiscal years ending December 31, 2021 through the fiscal year ending December 31, 2024. Lazard also calculated a range of estimated terminal values for Kimco by applying a selected range of exit capitalization rates of 5.5% to 6.5% to the stand-alone cash net operating income attributable to Kimco for the fiscal year ending December 31, 2025, which range of exit capitalization rates was selected based on Lazard’s professional judgment and experience, taking into account, among other things, current and historical implied capitalization rates for selected comparable companies and trends in the overall economy generally and in the industries and sectors in which Kimco operates. The cash flows and range of terminal values were then discounted to present value (as of December 31, 2020) using a selected range of discount rates of 8.0% to 9.0% derived from a weighted average cost of capital calculation. Lazard then added the net value of other assets and liabilities (including the value of Kimco’s investment in Albertsons, marked to market as of April 13, 2021) to calculate a total implied enterprise value for Kimco.
This analysis resulted in a range of implied per share equity values of $16.37 to $21.93, as compared to the per share closing price of the Kimco common stock on April 13, 2021 of $19.67.
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Selected Public Companies Analysis. Lazard reviewed publicly available financial and stock market information of Kimco and the following seven selected publicly traded companies that, given certain business and financial characteristics, Lazard considered generally relevant for purposes of analysis.
Regency Centers Corporation
SITE Centers Corporation
Retail Properties of America, Inc.
Retail Opportunity Investments Corporation
Urban Edge Properties
Kite Realty Group Trust
WRI
For each of the Kimco selected companies, Lazard calculated and compared, among other things, the ratio of its stock price as of April 13, 2021 to its 2021 and 2022 estimated funds from operations per share (which we refer to as the “FFO multiple”). Financial data of Kimco were based on the Kimco Projections and financial data for the Kimco selected companies were based on publicly available Wall Street research analysts’ estimates. The results of this analysis are summarized in the following table:
 
Low
High
Median
Mean
2021 FFO Multiple
13.3x
19.0x
16.1x
16.1x
2022 FFO Multiple
12.3x
17.4x
15.1x
14.9x
Based on its professional judgment after taking into account, among other things, such observed multiples, Lazard selected a range of 2021 FFO multiples of 14.0x to 18.0x and 2022 FFO multiples of 13.5x to 16.5x for Kimco. Lazard applied such 2021 FFO multiple range and 2022 FFO multiple range derived from the Kimco selected companies to 2021 estimated FFO as adjusted per share of Kimco common stock and 2022 estimated FFO as adjusted per share of Kimco common stock, respectively, each as set out in the Kimco Projections. This analysis resulted in a range of implied values per share of Kimco common stock of $17.64 to $22.68 for 2021 and $18.50 to $22.61 for 2022, as compared to the per share closing price of the Kimco common stock on April 13, 2021 of $19.67.
WRI Financial Analyses
Discounted Cash Flow Analysis. Lazard performed a discounted cash flow analysis of WRI by calculating, based on the WRI Projections, the estimated present value (as of December 31, 2020) of the stand-alone unlevered, after-tax free cash flows that WRI was forecasted to generate during the fiscal years ending December 31, 2021 through the fiscal year ending December 31, 2024. Lazard also calculated a range of estimated terminal values for WRI by applying a selected range of exit capitalization rates of 5.5% to 6.5% to the stand-alone cash net operating income attributable to WRI for the fiscal year ending December 31, 2025, which range of exit capitalization rates was selected based on Lazard’s professional judgment and experience, taking into account, among other things, current and historical implied capitalization rates for selected comparable companies and trends in the overall economy generally and in the industries and sectors in which WRI operates. The cash flows and range of terminal values were then discounted to present value (as of December 31, 2020) using a selected range of discount rates of 8.0% to 9.0% derived from a weighted average cost of capital calculation. Lazard then added the net value of other assets and liabilities to calculate a total enterprise value for WRI.
This analysis resulted in a range of implied per share values of $24.08 to $31.63, as compared to the implied per share Merger consideration of $30.59.
Comparable Public Companies Analysis. Lazard reviewed publicly available financial and stock market information of WRI and the following seven selected publicly traded companies that, given certain business and financial characteristics, Lazard considered generally relevant for purposes of analysis.
Regency Centers Corporation
SITE Centers Corporation
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Retail Properties of America, Inc.
Retail Opportunity Investments Corporation
Urban Edge Properties
Kite Realty Group Trust
Kimco
For each of the WRI selected companies, Lazard calculated and compared, among other things, its 2021 and 2022 FFO multiple. Financial data of the WRI selected companies were based on publicly available Wall Street research analysts’ estimates. The results of this analysis are summarized in the following table:
 
Low
High
Median
Mean
2021 FFO Multiple
13.3x
19.0x
16.0x
16.1x
2022 FFO Multiple
12.3x
17.4x
14.8x
14.8x
Based on its professional judgment after taking into account, among other things, such observed multiples, Lazard selected a range of 2021 FFO multiples of 14.0x to 18.0x and 2022 FFO multiples of 13.5x to 16.5x for WRI. Lazard applied such 2021 FFO multiple range and 2022 FFO multiple range derived from the WRI selected companies to 2021 estimated FFO per common share of WRI and 2022 estimated FFO per common share of WRI, respectively, each as set out in the WRI Projections. This analysis resulted in a range of implied values per common share of WRI of $24.22 to $31.14 for 2021 and $26.24 to $32.07 for 2022, as compared to the implied per share Merger consideration of $30.59.
Selected Precedent Transactions Analysis. Lazard analyzed certain publicly available information relating to certain acquisition transactions announced since April 13, 2011 involving publicly-traded shopping center REITs in the United States in which the implied transaction value was greater than $500 million.
While none of the target companies in the selected transactions is directly comparable to WRI and none of the selected transactions is directly comparable to the Merger, the target companies in the selected transactions are companies with certain operations that, for the purposes of analysis, may be considered similar to certain operations of WRI and, as such, for purposes of the analysis, the selected transactions may be considered similar to the Merger.
Using publicly available information, for each of the selected transactions, Lazard calculated the next twelve months FFO multiple. The selected transactions and the next twelve months FFO multiples calculated for the transactions are set forth below.
Announcement Date
Acquiror
Target
NTM FFO Multiple
11/14/2016
Regency Centers Corporation
Equity One, Inc.
21.4x
12/15/2015
DRA Advisors LLC
Inland Real Estate Corporation
10.5x
4/10/2015
Blackstone
Excel Realty Trust, Inc.
17.0x
10/31/2014
Edens Investment Trust
AmREIT, Inc.
24.4x
Based on the analysis of the relevant metrics for each of the selected transactions and its experience and professional judgment, Lazard selected a range of next twelve months FFO multiples of 17.0x to 21.0x and applied this range to WRI’s projected 2021 FFO per common share, as set out in the WRI Projections, to calculate a range of implied per share values of $29.41 to $36.33, as compared to the implied per share Merger consideration of $30.59.
General
The Kimco board of directors selected Lazard as its financial advisor in connection with the Merger based on Lazard’s reputation, qualifications and experience with the real estate industry and knowledge of Kimco’s business and affairs and the industry in which it operates. Lazard is an internationally recognized investment banking firm that has substantial experience in transactions similar to the Merger.
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Lazard, as part of its investment banking business, is continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements, leveraged buyouts, and valuations for estate, corporate and other purposes. Lazard has provided, currently is providing and in the future may provide certain investment banking services to Kimco, for which it has received and may receive compensation, including, in the past two years, having advised Kimco in connection with a potential transaction that was not consummated. In addition, in the ordinary course, Lazard and its affiliates and employees may trade securities of Kimco, WRI and certain of their respective affiliates for their own accounts and for the accounts of their customers and, accordingly, may at any time hold a long or short position in such securities, and may also trade and hold securities on behalf of Kimco, WRI and certain of their respective affiliates.
In connection with Lazard’s services as a financial advisor to the Kimco board of directors, Kimco agreed to pay Lazard an aggregate fee of $6.0 million, $1.5 million of which was payable upon the rendering of Lazard’s opinion, and $4.5 million of which is payable contingent upon consummation of the Merger. In addition, Kimco has agreed to reimburse certain of Lazard’s expenses arising, and to indemnify Lazard against certain liabilities that may arise, out of Lazard’s engagement.
Opinion of WRI’s Financial Advisor
Pursuant to an engagement letter, WRI retained J.P. Morgan as its financial advisor in connection with the Merger.
At the meeting of the WRI board of trust managers held on April 14, 2021, J.P. Morgan rendered its oral opinion to the WRI board of trust managers that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders. J.P. Morgan confirmed its April 14, 2021 oral opinion by delivering its written opinion, dated as of April 14, 2021 to the WRI board of trust managers that, as of such date, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders.
The full text of the written opinion of J.P. Morgan, dated as of April 14, 2021, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex E to this joint proxy statement/prospectus and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this joint proxy statement/prospectus is qualified in its entirety by reference to the full text of such opinion. WRI’s shareholders are urged to read the opinion in its entirety. J.P. Morgan’s opinion was addressed to the WRI board of trust managers (in its capacity as such) in connection with and for the purposes of its evaluation of the Merger, was directed only to the Merger consideration to be paid in the Merger and did not address any other aspect of the Merger. J.P. Morgan expressed no opinion as to the fairness of the Merger consideration to the holders of any other class of securities, creditors or other constituencies of WRI or as to the underlying decision by WRI to engage in the Merger. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. The opinion does not constitute a recommendation to any shareholder of WRI as to how such shareholder should vote with respect to the Merger or any other matter.
In arriving at its opinion, J.P. Morgan, among other things:
reviewed a draft dated April 14, 2021 of the Merger Agreement;
reviewed certain publicly available business and financial information concerning WRI and Kimco and the industries in which they operate;
compared the financial and operating performance of WRI and Kimco with publicly available information concerning certain other companies J.P. Morgan deemed relevant and reviewed the current and historical market prices of WRI common shares and Kimco common stock and certain publicly traded securities of such other companies;
reviewed certain internal financial analyses and forecasts prepared by the managements of WRI and Kimco relating to their respective businesses, as well as the estimated amount and timing of cost savings and related expenses and synergies expected to result from the Merger (the “Synergies”); and
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performed such other financial studies and analyses and considered such other information as J.P. Morgan deemed appropriate for the purposes of its opinion.
In addition, J.P. Morgan held discussions with certain members of the managements of WRI and Kimco with respect to certain aspects of the Merger, and the past and current business operations of WRI and Kimco, the financial condition and future prospects and operations of WRI and Kimco, the effects of the Merger on the financial condition and future prospects of WRI and Kimco, and certain other matters J.P. Morgan believed necessary or appropriate to its inquiry.
In giving its opinion, J.P. Morgan relied upon and assumed the accuracy and completeness of all information that was publicly available or was furnished to or discussed with J.P. Morgan by WRI and Kimco or otherwise reviewed by or for J.P. Morgan. J.P. Morgan did not independently verify any such information or its accuracy or completeness and, pursuant to J.P. Morgan’s engagement letter with WRI, J.P. Morgan did not assume any obligation to undertake any such independent verification. J.P. Morgan did not conduct or was not provided with any valuation or appraisal of any assets or liabilities, nor did J.P. Morgan evaluate the solvency of WRI or Kimco under any state or federal laws relating to bankruptcy, insolvency or similar matters. In relying on financial analyses and forecasts provided to J.P. Morgan or derived therefrom, including the Synergies, J.P. Morgan assumed that they were reasonably prepared based on assumptions reflecting the best currently available estimates and judgments by management as to the expected future results of operations and financial condition of WRI and Kimco to which such analyses or forecasts relate. J.P. Morgan expressed no view as to such analyses or forecasts (including the Synergies) or the assumptions on which they were based. J.P. Morgan also assumed that the Merger and the other transactions contemplated by the Merger Agreement will qualify as a tax-free reorganization for United States federal income tax purposes and will be consummated as described in the Merger Agreement, and that the definitive Merger Agreement would not differ in any material respects from the draft thereof furnished to J.P. Morgan. J.P. Morgan also assumed that the representations and warranties made by WRI and Kimco in the Merger Agreement and the related agreements were and will be true and correct in all respects material to its analysis. J.P. Morgan is not a legal, regulatory or tax expert and relied on the assessments made by advisors to WRI with respect to such issues. J.P. Morgan further assumed that all material governmental, regulatory or other consents and approvals necessary for the consummation of the Merger will be obtained without any adverse effect on WRI or Kimco or on the contemplated benefits of the Merger.
The projections furnished to J.P. Morgan were prepared by the management of WRI and Kimco as discussed more fully under the section entitled “—Certain Unaudited Prospective Financial Information.” WRI and Kimco do not publicly disclose internal management projections of the type provided to J.P. Morgan in connection with J.P. Morgan’s analysis of the Merger, and such projections were not prepared with a view toward public disclosure. These projections were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of the managements of WRI and Kimco, including, without limitation, factors related to general economic and competitive conditions and prevailing interest rates. Accordingly, actual results could vary significantly from those set forth in such projections. For more information regarding the use of projections and other forward-looking statements, please refer to the section entitled “—Certain Unaudited Prospective Financial Information.”
J.P. Morgan’s opinion was necessarily based on economic, market and other conditions as in effect on, and the information made available to J.P. Morgan as of, the date of such opinion. J.P. Morgan’s opinion noted that subsequent developments may affect J.P. Morgan’s opinion and that J.P. Morgan does not have any obligation to update, revise, or reaffirm such opinion. J.P. Morgan’s opinion is limited to the fairness, from a financial point of view, of the Merger consideration to be paid to the holders of WRI common shares in the Merger, and J.P. Morgan has expressed no opinion as to the fairness of any consideration to be paid in connection with the Merger to the holders of any other class of securities, creditors or other constituencies of WRI or as to the underlying decision by WRI to engage in the Merger. Furthermore, J.P. Morgan expressed no opinion with respect to the amount or nature of any compensation to any officers, trust managers, directors, or employees of any party to the Merger, or any class of such persons relative to the Merger consideration to be paid to the holders of WRI common shares in the Merger or with respect to the fairness of any such compensation. J.P. Morgan expressed no opinion as to the price at which WRI common shares or Kimco common stock will trade at any future time.
The terms of the Merger Agreement were determined through arm’s length negotiations between WRI and Kimco, and the decision to enter into the Merger Agreement was solely that of WRI’s board of trust managers
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and Kimco’s board of directors. J.P. Morgan’s opinion and financial analyses were only one of the many factors considered by WRI’s board of trust managers in its evaluation of the Merger and should not be viewed as determinative of the views of WRI’s board of trust managers or management with respect to the Merger or the Merger consideration.
In accordance with customary investment banking practice, J.P. Morgan employed generally accepted valuation methodologies in rendering its opinion to WRI’s board of trust managers on April 14, 2021 and in the financial analysis presented to WRI’s board of trust managers on such date in connection with the rendering of such opinion. The following is a summary of the material financial analyses utilized by J.P. Morgan in connection with rendering its opinion to WRI’s board of trust managers and does not purport to be a complete description of the analyses or data presented by J.P. Morgan. Some of the summaries of the financial analyses include information presented in tabular format. The tables are not intended to stand alone, and in order to more fully understand the financial analyses used by J.P. Morgan, the tables must be read together with the full text of each summary. Considering the data set forth below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of J.P. Morgan’s analyses.
Public Trading Multiples. Using publicly available information, J.P. Morgan compared selected financial data of WRI and Kimco with similar data for selected publicly traded companies engaged in businesses which J.P. Morgan judged to be sufficiently analogous to those engaged in by WRI and Kimco. The companies selected by J.P. Morgan were as follows:
Regency Centers Corporation
Brixmor Property Group Inc.
SITE Centers Corp.
Retail Properties of America, Inc.
Retail Opportunity Investments Corp.
Urban Edge Properties
Kite Realty Group Trust
WRI
Kimco
These companies were selected, among other reasons, because they are publicly traded companies with operations and businesses that, for the purposes of J.P. Morgan’s analysis, may be considered similar to those of WRI and Kimco. However, certain of these companies may have characteristics that are materially different from those of WRI and Kimco. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the selected companies differently than they would affect WRI and Kimco.
Using publicly available information, J.P. Morgan calculated, for each selected company, the ratios of (i) the company’s equity value to the consensus equity research analyst estimates for the company’s funds from operations (“FFO”) for the years ending December 31, 2021 (the “P/2021E FFO”) and December 31, 2022 (the “P/2022E FFO”) and (ii) a third party research analyst estimate for the company’s cash net operating income for the next twelve months to a third party research analyst estimate for the company’s implied value of real estate (the “Implied Capitalization Rate”).
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For WRI, based on the results of this analysis, J.P. Morgan selected multiple reference ranges of 12.75x – 19.00x, 12.00x – 17.50x and 7.1% – 5.3% for P/2021E FFO, P/2022E FFO and Implied Capitalization Rate, respectively. After applying such ranges to the projected FFO for WRI for the twelve month period ending December 31, 2021, the projected FFO for WRI for the year ending December 31, 2022, and the projected cash net operating income for WRI for the year ending December 31, 2021, respectively, the analysis indicated the following ranges of implied per share equity value (rounded to the nearest $0.25) for WRI common shares:
 
Implied Per Share Equity Value
 
Low
High
WRI P/2021E FFO
$22.00
$32.75
WRI P/2022E FFO
$23.25
$34.00
WRI Implied Capitalization Rate
$21.25
$32.75
The ranges of implied per share equity value for WRI common shares were compared to the closing share price of WRI common shares of $27.50 on April 13, 2021, the trading day immediately preceding the date of the written opinion, dated April 14, 2021, and the implied per share consideration (based on the closing price of Kimco common stock on April 13, 2021) of $30.59.
For Kimco, based on the results of the analysis described above, J.P. Morgan selected multiple reference ranges of 12.75x – 19.00x, 12.00x – 17.50x and 7.1% – 5.3% for P/2021E FFO, P/2022E FFO and Implied Capitalization Rate, respectively. After applying such ranges to the projected FFO for Kimco for the year ending December 31, 2021, the projected FFO for Kimco for the year ending December 31, 2022, and the projected cash net operating income for Kimco for the year ending December 31, 2021, respectively, the analysis indicated the following ranges of implied per share equity value (rounded to the nearest $0.25) for Kimco common stock:
 
Implied Per Share Equity Value
 
Low
High
Kimco P/2021E FFO
$16.00
$24.00
Kimco P/2022E FFO
$16.00
$23.25
Kimco Implied Capitalization Rate
$14.00
$23.00
The ranges of implied per share equity value for Kimco common stock were compared to the closing share price of Kimco common stock of $19.67 on April 13, 2021, the trading day immediately preceding the date of the written opinion, dated April 14, 2021.
Discounted Cash Flow Analysis. J.P. Morgan conducted a discounted cash flow analysis for the purpose of determining an implied fully diluted equity value per share for WRI common shares and Kimco common stock. J.P. Morgan calculated the unlevered free cash flows that WRI and Kimco are expected to generate during fiscal years 2021E through 2025E (as set forth in the section entitled “Certain Unaudited Prospective Financial Information, which were discussed with, and approved by, WRI’s board of trust managers for use by J.P. Morgan in connection with its financial analyses). J.P. Morgan also calculated a range of terminal values for WRI and Kimco at the end of this period by applying perpetual growth rates ranging from 2.50% to 3.00%, based on guidance provided by WRI’s management, to estimates of the unlevered terminal free cash flows for each of WRI and Kimco at the end of fiscal-year 2025E, as provided in the WRI and Kimco management projections. J.P. Morgan then discounted the unlevered free cash flow estimates and the range of terminal values to present value as of December 31, 2020 using discount rates ranging from 7.00% to 7.50% for WRI, and 6.75% to 7.25% for Kimco, which ranges were chosen by J.P. Morgan based upon an analysis of the weighted average cost of capital of WRI and Kimco, respectively. For each of WRI and Kimco, the present value of the unlevered free cash flow estimates and the range of terminal values were then adjusted by subtracting net debt for each company as of December 31, 2020.
Based on the foregoing, this analysis indicated the following ranges of implied per share equity value for WRI common shares and Kimco common stock, rounded to the nearest $0.25:
 
Implied Per Share Equity Value
 
Low
High
WRI Discounted Cash Flow
$21.75
$30.00
Kimco Discounted Cash Flow
$14.00
$21.00
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The range of implied per share equity values for WRI common shares was compared to the closing share price of WRI common shares of $27.50 on April 13, 2021, the trading day immediately preceding the date of the written opinion, dated April 14, 2021, and the implied per share consideration (based on the closing price of Kimco common stock on April 13, 2021) of $30.59. The range of implied per share equity values for Kimco was compared to the closing share price of Kimco common stock of $19.67 on April 13, 2021, the trading day immediately preceding the date of the written opinion, dated April 14, 2021.
Relative Value Analysis. J.P. Morgan compared the results for WRI to the results for Kimco with respect to the public trading multiples and discounted cash flow analyses described above. J.P. Morgan compared the lowest equity value per share for WRI to the highest equity value per share for Kimco to derive the lowest exchange ratio implied by each pair of results. J.P. Morgan also compared the highest equity value per share for WRI to the lowest equity value per share for Kimco to derive the highest exchange ratio implied by each pair of results. The ranges of implied exchange ratios resulting from this analysis (adjusted to reflect cash consideration of $2.89 per share) were:
 
Implied Exchange Ratios
 
Low
High
P/2021E FFO
0.796x
1.866x
P/2022E FFO
0.876x
1.944x
Implied Capitalization Rate
0.798x
2.133x
Discounted Cash Flow
0.898x
1.936x
The ranges of implied exchange ratios resulting from the foregoing analysis were compared to (i) the implied exchange ratio (adjusted to reflect cash consideration of $2.89 per share) of 1.251x on April 13, 2021, the trading day immediately preceding the date of the written opinion, dated April 14, 2021, and (ii) the per share stock consideration of 1.408x, as contemplated in the Merger Agreement.
Value Creation Analysis. J.P. Morgan conducted an analysis of the theoretical value creation to the existing holders of WRI common shares that compared the estimated implied equity value of WRI common shares on a standalone basis, based on the midpoint value determined in J.P. Morgan’s discounted cash flow analysis described above, to the estimated implied equity value of former WRI common shareholders’ ownership in the combined company, pro forma for the Merger.
J.P. Morgan calculated the pro forma implied equity value of WRI common shares by (1) adding the sum of (a) the implied equity value of WRI on a stand-alone basis of approximately $3.289 billion, using the midpoint value determined in J.P. Morgan’s discounted cash flow analysis of WRI described above, (b) the implied equity value of Kimco on a stand-alone basis of approximately $7.425 billion, using the midpoint value determined in J.P. Morgan’s discounted cash flow analysis of Kimco described above, and (c) the estimated value of synergies, as reflected in estimates WRI’s management provided to J.P. Morgan for use in connection with its analysis, in the aggregate amount of approximately $994 million, (2) subtracting the sum of (a) the cash consideration paid to the holders of WRI common shares in the aggregate amount of approximately $373 million and (b) the transaction expenses of approximately $125 million and (3) multiplying such result by the pro forma equity ownership of the combined company by the existing holders of WRI common shares of approximately 29.4%. This analysis indicated that the Merger implied pro forma equity value for such holders of approximately $3.299 billion, which, when combined with the cash consideration paid to the holders of WRI common shares, represents accretion in value of approximately $383 million, or 11.6% compared to the standalone equity value of WRI. There can be no assurance, however, that the synergies, transaction-related expenses and other impacts referred to above will not be substantially greater or less than those estimated by WRI’s management and described above.
Miscellaneous. The foregoing summary of certain material financial analyses does not purport to be a complete description of the analyses or data presented by J.P. Morgan. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. J.P. Morgan believes that the foregoing summary and its analyses must be considered as a whole and that selecting portions of the foregoing summary and these analyses, without considering all of its analyses as a whole, could create an incomplete view of the processes underlying the analyses and its opinion. As a result, the ranges of valuations resulting from any particular analysis or combination of analyses described above were merely utilized to create points of reference for analytical purposes and should not be taken to be the view of J.P. Morgan with respect to
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the actual value of WRI or Kimco. The order of analyses described does not represent the relative importance or weight given to those analyses by J.P. Morgan. In arriving at its opinion, J.P. Morgan did not attribute any particular weight to any analyses or factors considered by it and did not form an opinion as to whether any individual analysis or factor (positive or negative), considered in isolation, supported or failed to support its opinion. Rather, J.P. Morgan considered the totality of the factors and analyses performed in determining its opinion.
Analyses based upon forecasts of future results are inherently uncertain, as they are subject to numerous factors or events beyond the control of the parties and their advisors. Accordingly, forecasts and analyses used or made by J.P. Morgan are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by those analyses. Moreover, J.P. Morgan’s analyses are not and do not purport to be appraisals or otherwise reflective of the prices at which businesses actually could be acquired or sold. None of the selected companies reviewed as described in the above summary is identical to WRI or Kimco. However, the companies selected were chosen because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analysis, may be considered similar to those of WRI and Kimco. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the companies compared to WRI and Kimco.
As a part of its investment banking business, J.P. Morgan and its affiliates are continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements, and valuations for corporate and other purposes. J.P. Morgan was selected to advise WRI with respect to the Merger and deliver an opinion to WRI’s board of trust managers with respect to the Merger on the basis of, among other things, such experience and its qualifications and reputation in connection with such matters and its familiarity with WRI, Kimco and the industries in which they operate.
WRI has agreed to pay J.P. Morgan an estimated fee of approximately $30.1 million, $3.0 million of which became payable to J.P. Morgan at the time J.P. Morgan delivered its opinion and the remainder of which is contingent and payable upon the consummation of the Merger. In addition, WRI has agreed to reimburse J.P. Morgan for certain of its expenses incurred in connection with its services, including the fees and disbursements of counsel, and will indemnify J.P. Morgan against certain liabilities arising out of J.P. Morgan’s engagement.
During the two years preceding the date of J.P. Morgan’s opinion, J.P. Morgan and its affiliates have had commercial or investment banking relationships with WRI and Kimco for which J.P. Morgan and such affiliates have received customary compensation. Such services during such period have included acting as joint lead arranger and bookrunner on WRI’s credit facility, which closed in December 2019, joint lead arranger and bookrunner on Kimco’s credit facility, which closed in February 2020, and joint bookrunner on Kimco’s offerings of debt securities, which closed in July 2020 and August 2019. In addition, J.P. Morgan’s commercial banking affiliate is an agent bank and a lender under outstanding credit facilities of WRI and Kimco, for which it receives customary compensation or other financial benefits. In addition, J.P. Morgan and its affiliates hold, on a proprietary basis, less than 1% of the outstanding common stock of each of WRI and Kimco. In the ordinary course of their businesses, J.P. Morgan and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of WRI or Kimco for their own accounts or for the accounts of customers and, accordingly, may at any time hold long or short positions in such securities or other financial instruments. During the two year period preceding the date of J.P. Morgan’s opinion, the aggregate fees received by J.P. Morgan from each of WRI and Kimco was approximately $1.5 million and approximately $2.5 million, respectively.
Certain Unaudited Prospective Financial Information
Kimco and WRI do not, as a matter of course, publicly disclose forecasts or internal projections as to their respective future performance, revenues, earnings, financial condition or other results given, among other reasons, the inherent uncertainty of the underlying assumptions and estimates, other than, from time to time, estimated ranges of certain expected financial results and operational metrics for the current year and certain future years in their respective regular earnings press releases and other investor materials.
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However, in connection with the Merger, (i) Kimco’s management prepared certain unaudited prospective financial information with respect to Kimco for calendar years 2021 through 2025 on a standalone basis and without giving effect to the Merger, which was provided by Kimco management to Kimco’s board of directors and to Kimco’s financial advisors, Barclays and Lazard, for their use and reliance in performing their respective financial analyses in connection with their respective fairness opinions, as described in this joint proxy statement/prospectus under “—Opinion of Kimco’s Financial Advisors,” and to WRI and WRI’s financial advisor, J.P. Morgan, and approved by the WRI board of trust managers for J.P. Morgan’s use and reliance in connection its financial analyses and its fairness opinion, as described in this joint proxy statement/prospectus under “—Opinion of WRI’s Financial Advisor,” and was provided by WRI management to WRI’s board of trust managers and (ii) WRI’s management prepared certain unaudited prospective financial information with respect to WRI for calendar years 2021 through 2025 on a standalone basis and without giving effect to the Merger, which was provided by WRI management to WRI’s board of trust managers and to WRI’s financial advisor, J.P. Morgan and approved by the WRI board of trust managers, for its use and reliance in performing its financial analyses in connection with its fairness opinion, as described in this joint proxy statement/prospectus under “—Opinion of WRI’s Financial Advisor,” and to Kimco, and was provided by Kimco management to the Kimco board of directors and to Kimco’s financial advisors, Barclays and Lazard, and approved by Kimco for their use and reliance in performing their respective financial analyses in connection with their respective fairness opinions, as described in this joint proxy statement/prospectus under “—Opinion of Kimco’s Financial Advisors.” We refer to this information collectively as the “prospective financial information.” A summary of certain significant elements of this information is set forth below and is included in this joint proxy statement/prospectus solely for the purpose of providing holders of Kimco common stock and holders of WRI common shares access to certain nonpublic information made available to Kimco and its board of directors and WRI and its boards of trust managers and their respective financial advisors.
Neither Kimco, WRI nor any of their respective advisors or other representatives endorses the prospective financial information as necessarily predictive of actual future results. Furthermore, although presented with numerical specificity and prepared on a reasonable basis, the prospective financial information reflects numerous estimates and assumptions made by Kimco senior management or WRI senior management, as applicable, at the time such prospective financial information was prepared or approved for use by the financial advisors and represents Kimco senior management’s or WRI senior management’s respective evaluation of Kimco’s and WRI’s expected future financial performance on a stand-alone basis, without reference to the Merger. In addition, since the prospective financial information covers multiple years, such information by its nature becomes subject to greater uncertainty with each successive year. These and the other estimates and assumptions underlying the prospective financial information involve judgments with respect to, among other things, economic, competitive, regulatory and financial market conditions and future business decisions that may not be realized and that are inherently subject to significant business, economic, competitive and regulatory uncertainties and contingencies, including, among other things, the inherent uncertainty of the business and economic conditions affecting the industries in which Kimco and WRI operate and the risks and uncertainties described under “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements” and in the reports that Kimco and WRI file with the SEC from time to time, all of which are difficult to predict and many of which are outside the control of Kimco and WRI and will be beyond the control of the combined company. There can be no assurance that the underlying assumptions or projected results will be realized, and actual results could differ materially from those reflected in the prospective financial information, whether or not the Merger is completed. Further, these assumptions do not include all potential actions that the senior management of Kimco or WRI could or might have taken during these time periods. The inclusion in this joint proxy statement/prospectus of the unaudited prospective financial information below should not be regarded as an indication that Kimco, Kimco’s board of directors, WRI, WRI’s board of trust managers or their respective advisors considered, or now consider, this prospective financial information to be material information to any holders of Kimco common stock or holders of WRI common shares, as the case may be, particularly in light of the inherent risks and uncertainties associated with such prospective financial information, or that it should be construed as financial guidance, and it should not be relied on as such. This information was prepared solely for internal use and is subjective in many respects and thus is susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. The prospective financial information is not fact and readers of this joint proxy statement/prospectus should not place undue reliance on the prospective financial information as necessarily indicative of actual future results. The prospective financial information also reflects numerous variables, expectations and assumptions available at the time it was prepared as to certain business decisions that are
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subject to change and does not take into account any circumstances or events occurring after the date they were prepared, including the transactions contemplated by the Merger Agreement or the possible financial and other effects on Kimco or WRI of the Merger, and does not attempt to predict or suggest actual future results of the combined company or give effect to the Merger, including the effect of negotiating or executing the Merger Agreement, the costs that may be incurred in connection with consummating the Merger, the potential synergies that may be achieved by the combined company as a result of the Merger, the effect on Kimco or WRI of any business or strategic decision or action that has been or will be taken as a result of the Merger Agreement having been executed, or the effect of any business or strategic decisions or actions which would likely have been taken if the Merger Agreement had not been executed, but which were instead altered, accelerated, postponed or not taken in anticipation of the Merger. Further, the prospective financial information does not take into account the effect of any possible failure of the Merger to occur. No assurances can be given that if the prospective financial information and the underlying assumptions had been prepared as of the date of this joint proxy statement/prospectus, similar assumptions would be used. In addition, the prospective financial information may not reflect the manner in which the combined company would operate after the Merger.
The prospective financial information was not prepared for the purpose of, or with a view toward, public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information, published guidelines of the SEC regarding forward-looking statements or generally accepted accounting principles.
The prospective financial information included in this joint proxy statement/prospectus has been prepared by, and is the responsibility of, Kimco's management and WRI's management. PricewaterhouseCoopers LLP (Kimco's independent registered public accounting firm) and Deloitte & Touche LLP (WRI's independent registered accounting firm) have not audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to the accompanying prospective financial information and, accordingly, PricewaterhouseCoopers LLP and Deloitte & Touche LLP do not express an opinion or any other form of assurance with respect thereto. The PricewaterhouseCoopers LLP report incorporated by reference into this joint proxy statement/prospectus relates to Kimco's previously issued financial statements, and the Deloitte & Touche LLP report incorporated by reference into this joint proxy statement/prospectus relates to WRI's previously issued financial statements. They do not extend to the prospective financial information and should not be read to do so.
Kimco Prospective Financial Information
The following table summarizes certain prospective financial information with respect to Kimco on a stand-alone basis (amounts may reflect rounding):
Summary of the Prospective Financial Information—Kimco Stand-Alone
($ in millions, except per share data)
 
2021E
2022E
2023E
2024E
2025E
Cash NOI(1)
$808
$860
$902
$931
$963
FFO as Adjusted per share(2)
$1.26
$1.37
$1.44
$1.50
$1.55
Unlevered cash flow(3)
$532
$574
$569
$587
$620
Unlevered cash flow (excluding Alberstons dividends)(4)
$516
$557
$550
$566
$598
(1)
Cash NOI is a non-GAAP financial performance measure that represents cash income from real estate operations less property operating expenses (before interest expense and depreciation and amortization).
(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. The National Association of Real Estate Investment Trusts (which we refer to as “NAREIT”) defines FFO as net income/(loss) available to Kimco’s common shareholders computed in accordance with GAAP, excluding (i) depreciation and amortization related to real estate, (ii) gains or losses from sales of certain real estate assets, (iii) gains and losses from change in control, (iv) impairment write-downs of certain real estate assets and investments in entities when the impairment directly attributable to decreases in the value of depreciable real estate held by the entity and (v) after adjustments for unconsolidated partnerships and joint ventures calculated to reflect FFO on the same basis. Kimco has the option and has elected to, exclude gains and losses on the sale of assets and impairments of assets incidental to its main business and to exclude mark-to-market changes in value on its equity securities in calculating FFO. FFO as adjusted is a supplemental non-GAAP financial measure that Kimco believes is more reflective of its core operating performance and provides investors and analysts an additional measure to compare Kimco’s performance across reporting periods on a consistent basis by excluding items that Kimco does not believe are indicative of its core operating performance. FFO as adjusted is generally calculated by Kimco as FFO excluding certain transactional income and expenses and non-operating impairments which management believes are not reflective of the results within Kimco’s operating real estate portfolio.
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(3)
Unlevered cash flow is a non-GAAP financial performance measure that adjusts Cash NOI by adding management fee and investment income, subtracting general and administrative and corporate expenses, tenant improvements, leasing commissions and recurring capital expenditures, adjusting for the impact of acquisitions, dispositions, redevelopment, development and the monetization of structured investments, and incorporating changes in working capital and other adjustments.
(4)
Represents unlevered cash flow as defined above, excluding projected dividends from the Albertsons investment.
WRI Prospective Financial Information
The following table summarizes certain prospective financial information with respect to WRI on a stand-alone basis (amounts may reflect rounding):
Summary of the Prospective Financial Information—WRI Stand-Alone
($ in millions, except per share data)
 
2021E
2022E
2023E
2024E
2025E
Cash NOI(1)
$318
$349
$367
$379
$389
FFO per share(2)
$1.73
$1.94
$2.06
$2.15
$2.21
Unlevered cash flow(3)
$225
$170
$207
$217
$224
(1)
Cash NOI is a non-GAAP financial performance measure that represents cash income from real estate operations less property operating expenses (before interest expense and depreciation and amortization).
(2)
FFO is a supplemental non-GAAP financial measure utilized to evaluate the operating performance of real estate companies. NAREIT defines FFO as net income/(loss) available to WRI’s common shareholders computed in accordance with GAAP, excluding (i) depreciation and amortization related to real estate, (ii) gains or losses from sales of certain real estate assets, (iii) gains and losses from change in control, (iv) impairment write-downs of certain real estate assets and investments in entities when the impairment directly attributable to decreases in the value of depreciable real estate held by the entity and (v) after adjustments for unconsolidated partnerships and joint ventures calculated to reflect FFO on the same basis.
(3)
Unlevered cash flow is a non-GAAP financial performance measure that adjusts Cash NOI by subtracting general and administrative and corporate expenses, tenant improvements, broker fees and recurring capital expenditures, adjusting for the impact of acquisitions, dispositions, redevelopment and development, and incorporating changes in working capital and other adjustments.
General
The prospective financial information was prepared separately using, in some cases, different assumptions, and the different estimates are not intended to be added together. Adding the prospective financial information together for the two companies is not intended to represent the results the combined company will achieve if the Merger is completed and is not intended to represent forecasted financial information for the combined company if the Merger is completed. Furthermore, Kimco and WRI may calculate certain non-GAAP financial metrics including Cash NOI, FFO, Recurring FFO and Unlevered Cash Flow using different methodologies.
By including in this joint proxy statement/prospectus a summary of the prospective financial information, neither Kimco nor WRI nor any of their respective advisors or other representatives has made or makes any representation to any person regarding the ultimate performance of Kimco or WRI compared to the information contained in the prospective financial information. Neither Kimco, WRI, nor, after completion of the Merger, the combined company, undertakes any obligation to update or otherwise revise the prospective financial information to reflect circumstances existing since their preparation or to reflect the occurrence of subsequent or unanticipated events, even in the event that any or all of the underlying assumptions are shown to be inappropriate, or to reflect changes in general economic or industry conditions. None of Kimco, WRI or their respective advisors or other representatives has made, makes or is authorized in the future to make any representation to any shareholder of Kimco or WRI or other person regarding Kimco’s or WRI’s ultimate performance compared to the information contained in the prospective financial information or that the results reflected in the prospective financial information will be achieved. The prospective financial information included above is provided because it was made available to and considered by Kimco and its board of directors, WRI and its board of trust managers and their respective financial advisors in connection with the Merger.
In light of the foregoing, and considering that the Kimco and WRI special meetings will be held several months after the prospective financial information was prepared, as well as the uncertainties inherent in any forecasted information, Kimco stockholders and WRI shareholders are cautioned not to place unwarranted reliance on such information, and are urged to review Kimco’s and WRI’s most recent SEC filings for a description of their reported financial results and the financial statements of Kimco and WRI incorporated by
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reference in this joint proxy statement/prospectus. See the section entitled “Where You Can Find More Information.” The prospective financial information summarized in this section is not included in this joint proxy statement/prospectus in order to induce any holder of Kimco common stock to vote in favor of the Kimco Merger Proposal or any of the other proposals to be voted on at the Kimco special meeting or to induce any holder of WRI common shares to vote in favor of the WRI Merger Proposal or any of the other proposals to be voted on at the WRI special meeting.
Interests of Kimco Directors and Executive Officers in the Merger
In addition to their interests in the Merger as stockholders, the directors and executive officers of Kimco have interests in the Merger that may be different from, or in addition to, those of Kimco stockholders generally. The Kimco board of directors was aware of these interests and considered them, among other matters, in approving the Merger Agreement.
The Merger Agreement provides that immediately following the effective time of the Merger, Kimco will add to its board of directors the chairman of the board of trust managers of WRI (or any other individual as may be agreed in writing by Kimco and WRI). The parties have subsequently agreed that the Kimco board of directors will remain eight members immediately following the effective time of the Merger, consisting of the existing members of the board of directors of Kimco immediately prior to the effective time. The chairman of WRI’s board of trust managers is expected to enter into a consulting agreement with Kimco at the closing of the Merger.
The current senior leadership team of Kimco is not expected to change as a result of the Merger. Pursuant to the Merger Agreement, at the effective time of the Merger, the senior leadership team of Kimco will include Mr. Milton Cooper as Executive Chairman of the Board of Directors, Mr. Conor C. Flynn as Chief Executive Officer, Mr. Ross Cooper as President and Chief Investment Officer, Mr. Glenn G. Cohen as Executive Vice President, Chief Financial Officer and Treasurer and Mr. David Jamieson as Executive Vice President and Chief Operating Officer.
Interests of WRI Trust Managers and Executive Officers in the Merger
In addition to their interests in the Merger as stockholders, the trust managers and executive officers of WRI have interests in the Merger that may be different from, or in addition to, those of WRI shareholders generally. The board of trust managers of WRI was aware of these interests and considered them, among other matters, in approving the Merger Agreement.
Treatment of Outstanding WRI Equity-Based Awards
At the effective time of the Merger, upon the terms and subject to the conditions of the Merger Agreement, each award of restricted WRI common shares that is outstanding as of immediately prior to the effective time of the Merger will become vested at the effective time of the Merger either by its terms or the terms of any of WRI’s benefit plans as a result of the occurrence of the effective time of the Merger, with any applicable performance goals deemed satisfied at the target level, and, as of the effective time of the Merger, shall be canceled and converted into the right to receive the Merger consideration with respect to each WRI common share subject to such WRI restricted share award, as described in “—Treatment of WRI Equity-Based Awards in the Merger.”
The table below sets forth, for each WRI executive officer and trust manager, the number of shares covered by outstanding WRI restricted share awards as of the closing date, which we assume to be August 31, 2021 for these purposes, excluding amounts paid in respect of the prorated incentive payments, as described below under “—Prorated Incentive Payments.” These numbers do not forecast any grants or additional issuances of equity-based awards following August 31, 2021, nor do they forecast any dividends or forfeitures of restricted share awards following August 31, 2021. Depending on when the closing date occurs, certain restricted share awards shown in the table may vest in accordance with their terms.
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The table below also sets forth the value, based on the number of restricted share awards determined as described above for each executive officer and trust manager, of such restricted share awards on August 31, 2021, with such amounts calculated by multiplying the number of WRI common shares subject to such restricted share awards by $30.32, which is value of the Merger consideration based on the closing price of Kimco common stock on the NYSE on April 14, 2021, the last trading day before public announcement of the Merger.
WRI Restricted Share Awards
Name
Number of WRI
Restricted Share
Awards
Amount
Executive Officers
 
 
Andrew M. Alexander
371,718
$11,270,490
Stanford J. Alexander
0
$0
Johnny L. Hendrix
164,933
$5,000,769
Stephen C. Richter
164,933
$5,000,769
 
 
 
Non-Employee Trust Managers
 
 
Shelaghmichael C. Brown
37,647
$1,141,457
Stephen A. Lasher
27,295
$827,584
Thomas L. Ryan
27,295
$827,584
Douglas W. Schnitzer
74,636
$2,262,964
C. Park Shaper
27,295
$827,584
Marc J. Shapiro
59,904
$1,816,289
Change in Control Agreements
WRI is party to severance and change in control agreements with Messrs. A. Alexander, Hendrix and Richter, which provide severance and other separation benefits in the event such executive officer experiences a qualifying termination of employment in connection with a change in control. It is expected that the occurrence of the effective time will constitute a change in control for purposes of such agreements.
Pursuant to the applicable agreement, if Messrs. A. Alexander, Hendrix or Richter is terminated (i) by WRI for any reason other than cause following the commencement of any discussion with a third person that results in a change in control within 180 calendar days after such termination of employment, or (ii) by WRI other than for cause, by the executive for good reason (as defined in the severance and change in control agreements), or due to permanent disability or death, in each case under this prong (ii) within one year following a change in control, he will be entitled to a lump sum severance benefit in an amount equal to (1) 2.99 times his annualized base salary as of the date an event constituting a change in control first occurs or, if greater, (2) 2.99 times his highest base salary in the five fiscal years preceding the first event constituting a change in control, plus, in either case, 2.99 times his targeted bonus for the fiscal year in which the first event constituting a change in control occurs. In addition, Messrs. Hendrix and Richter are each entitled to receive an additional payment or payments to compensate for any excise tax imposed by Section 4999 of the Code or any similar state or local taxes or any penalties or interest with respect to the tax. Mr. A. Alexander is not entitled to receive such a payment, but if the payments under the agreement would be subject to such excise tax, then the payments will be reduced if and to the extent that such reduction would allow Mr. A. Alexander to receive a higher net after tax amount. In addition to the cash severance amount described above, Messrs. A. Alexander, Hendrix and Richter will also receive one year of employee benefits coverage substantially similar to what he received or was entitled to receive prior to the change in control, and one additional year of credited service for purposes of certain of WRI’s benefit plans (which will apply only with respect to any such person who is an employee of Kimco after the Effective Time, which for this purpose, is assumed to not be the case). The severance and change in control agreements also provide that all awards under WRI’s equity plans will vest “single-trigger” upon a change in control.
All payments under the severance and change in control agreements are “double-trigger” in nature as they will only be payable in the event of a qualifying termination of employment following the completion of the Merger. An estimate of the value of such payments and benefits, assuming no increase to any such named executive officer’s compensation or benefit levels August 31, 2021, is set forth below in the section entitled
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Quantification of Payments and Benefits to WRI’s Named Executive Officers.” If compensation and benefit levels are changed after such date, the actual value of the applicable named executive officer’s severance payments and benefits may be different from those provided for below.
Prorated Incentive Payments
Pursuant to the Merger Agreement, the surviving corporation will make payments following the effective time in respect of prorated target bonus and WRI restricted share award opportunities with respect to 2021 to certain individuals, including Messrs. A. Alexander, Hendrix and Richter, which amounts will be prorated based on the number of days elapsed in 2021 as of the effective time (which we refer to as the “prorated incentive payments”). If payments in respect of the gross-up or reimbursement of taxes under Section 4999 of the Code or otherwise to exceed a certain amount taking into account the prorated incentive payments, the prorated incentive payments will be reduced so that the applicable gross-up payments do not exceed such amount, which reduction may apply to Messrs. Hendrix and Richter’s prorated incentive payments. It is not currently anticipated that Messrs. Hendrix and Richter’s prorated incentive payment will be so reduced.
The maximum prorated incentive payment to which the named executive officers may be entitled (assuming that the effective time of the Merger occurs on December 31, 2021) is set forth below. The WRI trust managers are not eligible to receive a prorated incentive payment.
Name
WRI Restricted
Share Award
Opportunity
Target Bonus
Opportunity
Executive Officers
 
 
Andrew M. Alexander
$3,500,000
$1,000,000
Stanford J. Alexander
$0
$0
Johnny L. Hendrix
$1,400,000
$440,000
Stephen C. Richter
$1,400,000
$440,000
Consulting Agreement with Mr. A. Alexander
Kimco expects to enter into a consulting agreement with Mr. A. Alexander, to be effective upon the closing of the Merger. The consulting agreement is expected to provide that Mr. A. Alexander will serve as a consultant to Kimco for the one-year period following the effective time of the Merger, subject to one-year renewals upon notice by Kimco. During the consulting period, Kimco is expected to pay Mr. A. Alexander an annual consulting fee of $150,000 and will generally reimburse Mr. A. Alexander for all reasonable expenses incurred during the consulting period. During the consulting period, Mr. A. Alexander will not be eligible to participate in Kimco’s employee benefit plans.
The consulting period is terminable by either Kimco or Mr. A. Alexander upon ten days’ prior written notice by either party or upon Mr. A. Alexander’s death or disability. Upon termination of the consulting period for any reason and notwithstanding the remaining length of the consulting period, Mr. A. Alexander is only entitled to any unpaid consulting fees through the date of termination and any reimbursable business expenses. Such payments are not subject to a release of claims requirement. Pursuant to the consulting agreement, Mr. A. Alexander is subject to a perpetual confidentiality covenant, and Mr. A. Alexander is prohibited during the consulting period from engaging in any activities that are competitive with Kimco. Mr. A. Alexander will be entitled to indemnification from Kimco as set forth in Kimco’s standard indemnification agreement with its directors and officers.
Indemnification and Insurance
Pursuant to the terms of the merger agreement, certain trust managers, directors and officers of WRI and its subsidiaries will be entitled to certain ongoing indemnification and coverage under directors’ and officers’ liability and fiduciary liability insurance policies following the merger. Such indemnification and insurance coverage is further described in the section entitled “The Merger Agreement—Indemnification and Insurance” beginning on page 87.
Quantification of Payments and Benefits to WRI’s Named Executive Officers
The table below, along with its footnotes, sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation payable to WRI’s Chairman, President and Chief Executive Officer,
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Chairman Emeritus, Executive Vice President and Chief Operating Officer and Executive Vice President and Chief Financial Officer, who are WRI’s only executive officers (each of whom we refer to as a “named executive officer”), which compensation is based on, or otherwise relates to, the Merger and which is subject to an advisory vote of WRI’s shareholders, as described below in the section entitled “WRI Proposal 2: The WRI Compensation Proposal.” This compensation is referred to as “golden parachute” compensation by the applicable SEC disclosure rules, and in this section such term is used to describe the merger-related compensation payable to WRI’s named executive officers. The table below sets forth, for the purposes of this golden parachute disclosure, the amount of payments and benefits (on a pre-tax basis) that each of WRI’s named executive officers would receive, using the following assumptions:
the effective time will occur on August 31, 2021 (which is the assumed date solely for purposes of this golden parachute compensation disclosure);
each of WRI’s named executive officers will experience a qualifying termination under their severance and change in control agreements at such time;
each named executive officer’s base salary rate and annual target bonus remain unchanged from those in place as of March 1, 2021;
equity awards that were outstanding as of August 31, 2021, with any applicable performance goals deemed satisfied at the target level;
the per share assumed merger consideration of $30.32, which was the closing price of Kimco common stock on the NYSE on April 14, 2021, the last trading day before public announcement of the Merger; and
the deemed termination of each named executive officer’s employment by Kimco without “cause” in connection with the completion of the Merger.
The calculations in the table do not include amounts that WRI’s named executive officers were already entitled to receive, or were vested in, as of the date of this joint proxy statement/prospectus. In addition, these amounts do not attempt to forecast any additional equity award grants, issuances, vesting events or forfeitures that may occur, or future dividends or dividend equivalents that may be accrued, prior to the completion of the merger. As a result of the foregoing assumptions, which may or may not actually occur or be accurate on the relevant date, including the assumptions described in the footnotes to the table, the actual amounts, if any, to be received by a named executive officer may materially differ from the amounts set forth below.
Golden Parachute Compensation
Name
Cash(1)
Equity(2)
Welfare
Benefits(3)
Tax
Reimbursement(4)
Total
Andrew M. Alexander
$8,382,000
$7,109,760
$1,319,202
$0
$16,810,962
Stanford J. Alexander
0
0
0
0
0
Johnny L. Hendrix
4,186,767
3,144,863
447,224
2,553,726
10,332,580
Stephen C. Richter
4,186,767
3,144,501
507,182
2,748,815
10,587,265
(1)
As described above in “—Change of Control Agreements,” the cash severance payments payable to each of Messrs. A. Alexander, Hendrix and Richter under the severance and change in control agreements consist of (a) 2.99 times his annualized base salary as of the date an event constituting a change in control first occurs or, if greater, (b) 2.99 times his highest base salary in the five fiscal years preceding the first event constituting a change in control, plus, in either case, 2.99 times his targeted bonus for the fiscal year in which the first event constituting a change in control occurs.
In addition, as described above in “—Prorated Incentive Payments,” each of Messrs. A. Alexander, Hendrix and Richter will be entitled to receive a prorated incentive payment following the effective time in respect of prorated target bonus and WRI restricted share award opportunities for 2021.
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The cash payments described in this column (1) include the following components:
Name
Base Salary
Severance
Annual Target
Bonus
Severance
Prorated
Incentive
Payments
Total
Andrew M. Alexander
$2,392,000
$2,990,000
$3,000,000
$8,382,000
Stanford J. Alexander
0
0
0
0
Johnny L. Hendrix
1,644,500
1,315,600
1,226,667
4,186,767
Stephen C. Richter
1,644,500
1,315,600
1,226,667
4,186,767
(2)
As described above under “—Treatment of WRI Equity-Based Awards in the Merger,” the equity amounts consist of the “single-trigger” accelerated vesting of unvested WRI restricted share awards, with any applicable performance goals deemed satisfied at the target level. The amounts shown are based on the number of restricted share awards held by each named executive officer on January 31, 2021. The amounts shown do not attempt to forecast any grants or additional issuances, vesting events or forfeitures of equity-based awards following January 31, 2021, nor do they forecast any dividends or forfeitures of equity-based awards following the date of this proxy statement.
(3)
As described in the section entitled “—Change of Control Agreements,” the welfare benefits to the named executive officers consist of one year of employee benefits coverage substantially similar to what he received or was entitled to receive prior to the change in control. The amounts reflected in the column above reflect benefit rates in effect through December 31, 2020; therefore if benefits levels change between the date of this joint proxy statement/prospectus and the closing of the merger, such amounts will change.
(4)
As described in the section entitled “—Change of Control Agreements,” the change of control agreements with Messrs. Hendrix and Richter provide for payments to such named executive officers to compensate for any excise tax imposed by Section 4999 of the Code or any similar state or local taxes or any penalties or interest with respect to the tax. The amounts reflected in the column above reflect the estimated potential amount of such payments.
Voting Agreements
In connection with the execution of the Merger Agreement, Kimco and WRI entered into voting agreements with each of Andrew M. Alexander and Stanford J. Alexander. The voting agreements provide, subject to the terms and conditions thereof, for each of Messrs. A. Alexander and S. Alexander, solely in his capacity as a shareholder of WRI, to vote the WRI common shares he owns of record or beneficially in favor of the Merger Agreement and against any alternative acquisition proposal. As of the record date for the WRI special meeting, Messrs. A. Alexander and S. Alexander collectively owned of record or beneficially approximately 5.4% of the WRI shares outstanding on that date.
Directors and Management Following the Merger
Initial Board Composition of Kimco following the Merger
The Merger Agreement provides that immediately following the effective time of the Merger, Kimco will add to its board of directors the chairman of the board of trust managers of WRI (or any other individual as may be agreed in writing by Kimco and WRI). The parties have subsequently agreed that the Kimco board of directors will remain eight members immediately following the effective time of the Merger, consisting of the existing members of the board of directors of Kimco immediately prior to the effective time. The chairman of WRI’s board of trust managers is expected to enter into a consulting agreement with Kimco at the closing of the Merger.
For additional information regarding the directors and executive officers of Kimco following the Merger, please refer to Kimco’s proxy statement on Schedule 14A filed on March 17, 2021 and WRI’s proxy statement on Schedule 14A filed on March 15, 2021, respectively, the relevant portions of which are incorporated into this document by reference through their respective Annual Reports on Form 10-K for the fiscal year ended December 31, 2020.
Officers of Kimco following the Merger
The current senior leadership team of Kimco is not expected to change as a result of the Merger. Pursuant to the Merger Agreement, at the effective time of the Merger, the senior leadership team of Kimco will include Mr. Milton Cooper as Executive Chairman of the Board of Directors, Mr. Conor C. Flynn as Chief Executive Officer, Mr. Ross Cooper as President and Chief Investment Officer, Mr. Glenn G. Cohen as Executive Vice President, Chief Financial Officer and Treasurer and Mr. David Jamieson as Executive Vice President and Chief Operating Officer.
Treatment of WRI Equity-Based Awards in the Merger
At the effective time of the Merger, upon the terms and subject to the conditions of the Merger Agreement, each award of restricted WRI common shares that is outstanding as of immediately prior to the effective time of
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the Merger will become vested at the effective time of the Merger either by its terms or the terms of any of WRI’s benefit plans as a result of the occurrence of the effective time of the Merger, with any applicable performance goals deemed satisfied at the target level, and, as of the effective time of the Merger, shall be canceled and converted into the right to receive the Merger consideration with respect to each WRI common share subject to such WRI restricted share award.
Treatment of WRI ESPP
Pursuant to the Merger Agreement, following the date of the Merger Agreement, participation in the ESPP will be limited to those employees who were participants as of immediately prior to the execution of the Merger Agreement, and participants may not increase their payroll deduction elections or rate of contributions from those in effect as of immediately prior to the execution of the Merger Agreement and may not make any separate non-payroll contributions. No new offering period will commence under the ESPP following the date the Merger Agreement was executed, and the ESPP will terminate at the effective time.
Accounting Treatment
Kimco prepares its financial statements in accordance with GAAP. The Merger will be accounted for by using the business combination accounting rules, which require the application of a screen test to evaluate if substantially all of the fair value of the assets acquired is concentrated in a single identifiable asset or group of similar identifiable assets to determine whether a transaction is accounted for as an asset acquisition or a business combination. In the event that the screen test is not met, the rules require a further assessment to determine whether an asset acquisition or a business combination has occurred. In addition, the rules require the identification of the acquirer, the determination of the acquisition date, the recognition and measurement, at fair value, of the identifiable assets acquired, liabilities assumed and any noncontrolling interest in the consolidated subsidiaries of the acquirer. After consideration of all applicable factors pursuant to the business combination accounting rules, the Merger will be treated as a business combination under GAAP with Kimco as the acquirer.
Regulatory Approvals
Kimco and WRI have each agreed to use their reasonable best efforts to take all actions and to do all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by the Merger Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings and other documents necessary to consummate the Merger and the other transactions contemplated by the Merger Agreement.
The parties’ respective obligations to complete the Merger are conditioned, among other matters, upon (i) the absence of any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger; (ii) the absence of any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any governmental entity of competent jurisdiction which makes the consummation of the Merger illegal; and (iii) the SEC having declared effective the registration statement of which this joint proxy statement/prospectus forms a part, with no stop order, or proceeding seeking a stop order, in effect thereto.
There can be no assurances that any necessary regulatory approvals will be obtained and, if obtained, there can be no assurances as to the timing of any approvals, Kimco’s and WRI’s ability to obtain the approvals on satisfactory terms or the absence of any litigation challenging such approvals. For more information, see “Risk Factors,” beginning on page 18.
Expected Timing of the Merger
Kimco and WRI are working to complete the Merger in the second half of 2021. However, the Merger is subject to various conditions, and it is possible that factors outside the control of both companies could result in the Merger being completed at a later time, or not at all. There may be a substantial amount of time between the respective Kimco and WRI special meetings and the completion of the Merger. Kimco and WRI hope to complete the Merger as soon as reasonably practicable following the satisfaction of all applicable conditions. For more information, see “Risk Factors—Risks Related to the Merger.”
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Exchange of Shares in the Merger
At or prior to the effective time of the Merger, Kimco will appoint the exchange agent to handle the exchange of certificates formerly representing WRI common shares for the Merger consideration. After the Merger is completed, if a shareholder held certificates representing WRI common shares immediately prior to the effective time of the Merger, the exchange agent, within five business days after the effective time of the Merger, will send such stockholder a letter of transmittal and instructions for exchanging its WRI common shares for the Merger consideration of 1.408 shares of Kimco common stock and $2.89 in cash, subject to customary anti-dilution adjustments and any adjustment that may be made pursuant to the terms of the Merger Agreement in certain circumstances relating to a special pre-closing distribution by WRI. Upon surrender of the certificates for cancellation (or affidavits of loss in lieu thereof and other customary requirements of the exchange agent) along with the executed letter of transmittal and other required documents described in the instructions, a holder of WRI common shares will receive the applicable Merger consideration, with cash paid in lieu of any fractional shares.
Holders of WRI common shares in book-entry form immediately prior to the effective time of the Merger will not need to take any action to receive the applicable Merger consideration, with cash paid in lieu of fractional shares.
If you are a Kimco stockholder, you are not required to take any action with respect to your Kimco stock certificates. Such certificates will continue to represent shares of Kimco common stock after the Merger.
Dividends
Kimco and WRI will take such actions as are necessary to ensure that the timing of any regular quarterly dividend paid by either Kimco or WRI prior to the effective time of the Merger will be coordinated so that, if either the holders of Kimco common stock or WRI common shares receive a distribution for a particular quarter prior to the effective time of the Merger, then the holders of WRI common shares and the holders of Kimco common stock, respectively, will also receive a distribution for such quarter prior to the effective time of the Merger. Additionally, Kimco and WRI will coordinate such that any such quarterly distributions will have the same record date and the same payment date, which will be consistent with Kimco’s historical record dates and payment dates unless otherwise agreed between the parties, in order to ensure that the holders of Kimco common stock and the holders of WRI common shares receive the same number of such dividends prior to the effective time of the Merger, subject to certain conditions.
If Kimco (in consultation with WRI) determines that it is necessary to declare a special distribution in accordance with the Merger Agreement in order to maintain its qualification as a REIT, Kimco must notify WRI in writing at least 10 business days prior to Kimco’s stockholders meeting, and WRI will be entitled to declare a dividend per share payable to holders of WRI common shares, in an amount per share equal to the product of (A) the special Kimco distribution declared by Kimco with respect to each share of Kimco common stock and (B) the exchange ratio.
If WRI (in consultation with Kimco) determines that it is necessary to declare a special distribution in accordance with the Merger Agreement in order to maintain its qualification as a REIT, WRI must notify Kimco in writing at least 10 business days prior to WRI’s shareholders meeting, and the Merger consideration shall be decreased by an amount equal to the special WRI distribution, which shall be effected by reducing the cash consideration by an amount equal to the per share amount of the WRI special distribution (it being understood that if the amount of the WRI special distribution exceeds the amount of the cash consideration, the stock consideration shall also be appropriately reduced to reflect the full effect of the portion of the WRI special distribution that exceeds the amount of the cash consideration).
In the event that a dividend or distribution with respect to the WRI common shares permitted under the terms of the Merger Agreement has (i) a record date prior to the effective time of the Merger and (ii) has not been paid as of the effective time of the Merger, the holders of WRI common shares shall be entitled to receive such dividend or distribution upon receipt of the Merger consideration in accordance with the procedures described under “The Merger Agreement—Exchanges of Shares in the Merger.”
Listing of Kimco Common Stock in the Merger
It is a condition to the completion of the Merger that the Kimco common stock issuable in the Merger be approved for listing on the NYSE, subject to official notice of issuance.
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De-Listing and Deregistration of WRI Common Shares
Pursuant to the Merger Agreement, after the effective time of the Merger, the WRI common shares currently listed on the NYSE will cease to be quoted on the NYSE and will be deregistered under the Exchange Act.
Appraisal and Dissenters’ Rights
Under Section 3-202(c)(1) of the MGCL, holders of Kimco common stock do not have the right to receive the appraised value of their shares in connection with the Merger because Kimco common stock is listed on a national securities exchange.
Holders of WRI common shares are entitled to dissenters’ rights under Subchapter H of Chapter 10 of the TBOC, provided they satisfy the special conditions and conditions set forth therein. For a more detailed discussion of your dissenters’ rights and the requirements for perfecting your dissenters’ rights, see “Dissenters’ Rights of WRI Shareholders.” In addition, a copy of Subchapter H of Chapter 10 of the TBOC is attached as Appendix E to this proxy statement/prospectus.
Litigation Relating to the Merger
Beginning on May 28, 2021, two purported holders of WRI common shares filed substantially similar complaints against WRI and the members of the WRI board of trust managers in the United States District Court for the Southern District of New York. One of these suits also names Kimco. The complaints are captioned as follows: Stein v. Weingarten Realty Investors et al., No. 1:21-cv-04806 (S.D.N.Y. filed May 28, 2021); and Waterman v. Weingarten Realty Investors et al., No. 1:21-cv-04970 (S.D.N.Y. filed June 4, 2021). The complaints variously assert, among other things, claims under Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against WRI and the members of the WRI board of trust managers and claims under Section 20(a) of the Exchange Act against the members of the WRI board of trust managers (and in one case Kimco) for allegedly causing a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. In addition, beginning on June 7, 2021, two purported holders of Kimco common stock filed substantially similar complaints against Kimco and the members of the Kimco board of directors in the United States District Court for the Eastern District of New York and the United States District Court for the Southern District of New York, respectively. The complaints are captioned as Fields v. Kimco Realty Corporation et al., No. 1:21-cv-03198 (E.D.N.Y. filed June 7, 2021); and Nayak v. Kimco Realty Corporation et al., No. 1:21-cv-05501 (S.D.N.Y. filed June 23, 2021). The complaints assert, among other things, claims under Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder against Kimco and the members of the Kimco board of directors and claims under Section 20(a) of the Exchange Act against the members of the Kimco board of directors for allegedly causing a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. In addition, on June 21, 2021, a purported holder of Kimco common stock filed a complaint against Kimco and the members of the Kimco board of directors in the Supreme Court of the State of New York for the County of Westchester. The complaint is captioned as Garfield v. Cooper et al (NY Sup. Ct. filed June 21, 2021). The complaint asserts, among other things, claims for breach of fiduciary duty under Maryland law as well as fraudulent misrepresentation, negligent misrepresentation and concealment under New York common law against Kimco and its board of directors. The complaint alleges that Kimco and its board of directors caused a materially incomplete and misleading registration statement on Form S-4 to be filed on May 28, 2021 with the SEC. Among other remedies, the plaintiffs seek to enjoin the merger.
If any case is not resolved, the lawsuit(s) could prevent or delay completion of the Merger and result in costs to Kimco and WRI. If plaintiffs are successful in obtaining an injunction prohibiting the completion of the Merger on the agreed-upon terms, then such injunction may prevent the Merger from being completed, or from being completed within the expected time frame. Other potential plaintiffs may file additional lawsuits against Kimco, WRI and/or the directors, trust managers and officers of either company in connection with the Merger.
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THE MERGER AGREEMENT
The following section summarizes material provisions of the Merger Agreement. This summary does not purport to be complete and may not contain all of the information about the Merger Agreement that is important to you. This summary is subject to, and qualified in its entirety by reference to, the Merger Agreement, which is attached as Annex A to this joint proxy statement/prospectus and is incorporated by reference into this joint proxy statement/prospectus. The rights and obligations of the parties are governed by the express terms and conditions of the Merger Agreement and not by this summary or any other information contained in this joint proxy statement/prospectus. You are urged to read the Merger Agreement carefully and in its entirety before making any decisions regarding the Merger Agreement and the Merger.
Explanatory Note Regarding the Merger Agreement
The summary of the Merger Agreement is included in this joint proxy statement/prospectus only to provide you with information regarding the terms and conditions of the Merger Agreement, and not to provide any other factual information about Kimco or WRI or their respective subsidiaries or businesses. Accordingly, the representations and warranties and other provisions of the Merger Agreement should not be read alone, but instead should be read together with the information provided elsewhere in this joint proxy statement/prospectus and in the documents incorporated by reference into this joint proxy statement/prospectus. For more information, see “Where You Can Find More Information.”
The representations, warranties and covenants contained in the Merger Agreement and described in this joint proxy statement/prospectus were made only for purposes of the Merger Agreement and as of specific dates and may be subject to more recent developments, were made solely for the benefit of the other parties to the Merger Agreement and may be subject to limitations agreed upon by the contracting parties, including being qualified by reference to confidential disclosures, for the purposes of allocating risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may apply standards of materiality in a way that is different from what may be viewed as material by you or other investors. The representations and warranties contained in the Merger Agreement will not survive the effective time of the Merger. Investors should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or conditions of Kimco, WRI or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by Kimco or WRI.
Form of the Merger
Pursuant to the Merger Agreement, upon the terms and subject to the conditions of the Merger Agreement, WRI will merge with and into Kimco, with Kimco continuing its existence.
The legacy holders of Kimco common stock and the legacy holders of WRI common shares will own approximately 71% and 29%, respectively, of the outstanding shares of Kimco common stock following the effective time of the Merger.
Merger Consideration
In connection with the Merger, upon the terms and subject to the conditions of the Merger Agreement, each WRI common shareholder will receive 1.408 newly issued shares of Kimco common stock plus $2.89 in cash for each WRI common share that such holder owns immediately prior to the effective time of the Merger, with cash paid in lieu of fractional shares. The Merger consideration is fixed and will not be adjusted to reflect stock price changes prior to the closing of the Merger.
The Merger consideration is subject to customary anti-dilution adjustments. If, at any time during the period between April 15, 2021 and the effective time of the Merger, there is a change in the number of issued and outstanding WRI common shares or shares of Kimco common stock, or securities convertible or exchangeable into WRI common shares or shares of Kimco common stock, in each case, as a result of a reclassification, stock split (including reverse stock split), stock dividend or stock distribution, recapitalization, merger, subdivision or other similar transaction, the Merger consideration shall be equitably adjusted to provide the holders of WRI common shares and Kimco common stock with the same economic effect as contemplated by the Merger Agreement prior to such event, provided that there will be no more than one such adjustment for any single action.
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In addition, if WRI (in consultation with Kimco) determines that it is necessary to declare a special distribution in accordance with the Merger Agreement in order to maintain its qualification as a REIT, WRI must notify Kimco in writing at least 10 business days prior to WRI’s shareholders meeting, and the Merger consideration shall be decreased by an amount equal to the special WRI distribution, which shall be effected by reducing the cash consideration by an amount equal to the per share amount of the WRI special distribution (it being understood that if the amount of the WRI special distribution exceeds the amount of the cash consideration, the stock consideration shall also be appropriately reduced to reflect the full effect of the portion of the WRI special distribution that exceeds the amount of the cash consideration).
For more information, see “—Exchange of Shares in the Merger.”
Treatment of WRI Equity-Based Awards in the Merger
At the effective time of the Merger, upon the terms and subject to the conditions of the Merger Agreement, each award of restricted WRI common shares that is outstanding as of immediately prior to the effective time of the Merger will become vested at the effective time of the Merger either by its terms or the terms of any of WRI’s benefit plans as a result of the occurrence of the effective time of the Merger, with any applicable performance goals deemed satisfied at the target level, and, as of the effective time of the Merger, shall be canceled and converted into the right to receive the Merger consideration with respect to each WRI common share subject to such WRI restricted share award.
Closing; Effective Time of the Merger
Unless the parties otherwise agree, upon the terms and subject to the conditions of the Merger Agreement, the closing of the Merger will take place on the date that is the fifth business day after the satisfaction or permitted waiver of the conditions set forth in the Merger Agreement (other than the conditions that by their nature are to be satisfied at the closing, but subject to the satisfaction or permitted waiver of those conditions at the closing).
Unless the parties otherwise agree, pursuant to the Merger Agreement, and upon the terms and subject to the conditions of the Merger Agreement, the Merger will become effective at the time when the Articles of Merger (which we refer to as the “articles of Merger”) have been accepted for record by the Harris County Clerk and the State Department of Assessments and Taxation of the State of Maryland, with such date and time specified in the articles of Merger. After the Merger becomes effective, Kimco will continue with the name “Kimco Realty Corporation.”
Charter and Bylaws
Pursuant to the Merger Agreement, and upon the terms and subject to the conditions of the Merger Agreement, (i) the Kimco charter in effect immediately prior to the Merger will be the charter of the surviving corporation following the Merger and (ii) the bylaws of Kimco as in effect immediately prior to the Merger will be the bylaws of the surviving corporation following the Merger.
Directors and Management Following the Merger
The Merger Agreement provides that immediately following the effective time of the Merger, Kimco will add to its board of directors the chairman of the board of trust managers of WRI (or any other individual as may be agreed in writing by Kimco and WRI). The parties have subsequently agreed that the size of the Kimco board of directors will remain eight members immediately following the effective time of the Merger, consisting of the existing members of the board of directors of Kimco immediately prior to the effective time. The chairman of WRI’s board of trust managers is expected to enter into a consulting agreement with Kimco at the closing of the Merger.
The current senior leadership team of Kimco is not expected to change as a result of the Merger. At the effective time of the Merger, the senior leadership team of Kimco is expected to include Mr. Milton Cooper as Executive Chairman of the Board of Directors, Mr. Conor C. Flynn as Chief Executive Officer, Mr. Ross Cooper as President and Chief Investment Officer, Mr. Glenn G. Cohen as Executive Vice President, Chief Financial Officer and Treasurer and Mr. David Jamieson as Executive Vice President and Chief Operating Officer.
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Exchange of Shares in the Merger
At or prior to the effective time of the Merger, upon the terms and subject to the conditions of the Merger Agreement, Kimco will appoint the exchange agent to handle the exchange of certificates formerly representing WRI common shares for the Merger consideration. After the Merger is completed, upon the terms and subject to the conditions of the Merger Agreement, if a shareholder held certificates representing WRI common shares immediately prior to the effective time of the Merger, the exchange agent will send them a letter of transmittal and instructions for exchanging their WRI common shares for the Merger consideration of 1.408 shares of Kimco common stock and $2.89 in cash, subject to customary anti-dilution adjustments and any adjustment that may be made pursuant to the terms of the Merger Agreement in certain circumstances relating to a special pre-closing distribution by WRI, and with cash paid in lieu of fractional shares. Upon surrender of the certificates for cancellation along with the executed letter of transmittal and other required documents described in the instructions, a holder of WRI common shares will receive the applicable Merger consideration, with cash paid in lieu of fractional shares.
Holders of WRI common shares in book-entry form immediately prior to the effective time of the Merger will not need to take any action to receive the applicable Merger consideration, with cash paid in lieu of fractional shares.
Representations and Warranties of Kimco and WRI
The Merger Agreement contains representations and warranties made by each of Kimco and WRI to each other. These representations and warranties are subject to qualifications and limitations. Some of the significant representations and warranties of both Kimco and WRI contained in the Merger Agreement relate to, among other things:
organization, standing and corporate power;
capital structure;
authority relative to execution and delivery of, and performance of obligations under, the Merger Agreement;
SEC filings, financial statements, internal controls and absence of undisclosed liabilities;
accuracy of information supplied or to be supplied in this joint proxy statement/prospectus and the registration statement of which it forms a part;
compliance with applicable laws;
legal proceedings;
tax matters, including qualification as a REIT;
material contracts;
benefit plans;
employee benefits and labor matters and compliance with the Employee Retirement Income Security Act of 1974, as amended;
absence of certain changes;
board approval of the Merger and exemption from anti-takeover statutes;
required stockholder approval;
real property;
compliance with environmental laws;
intellectual property;
permits and licenses;
insurance policies;
inapplicability of the Investment Company Act of 1940;
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brokers’ and finders’ fees; and
receipt of fairness opinions.
Definition of “Material Adverse Effect”
Many of the representations of Kimco and WRI are qualified by a “material adverse effect” standard (that is, they will not be deemed to be untrue or incorrect unless their failure to be true or correct, individually or in the aggregate, would have a material adverse effect). A “material adverse effect” with regard to either Kimco or WRI, for purposes of the Merger Agreement, means any effect that (i) is materially adverse to the assets, financial condition, business or continuing results of operations of such party and its subsidiaries, taken as a whole, or (ii) prevents or materially impairs or delays the ability of such party to consummate the Merger or the other transactions contemplated by the Merger Agreement on or prior to the outside date, except that a material adverse effect will not include any effect arising out of or resulting from:
any changes after April 15, 2021 in general United States or global economic conditions, in financial, debt, securities, capital or credit markets, including changes in interest rates, general business, labor or regulatory conditions or social or political conditions;
any changes after April 15, 2021 generally affecting the industry or industries in which such party operates or any of the markets or geographical areas in which such party or any of its subsidiaries operate;
any changes or proposed changes after April 15, 2021 in law or the interpretation thereof or GAAP or the interpretation thereof;
acts of war, armed hostility or terrorism (including cyber-terrorism or cyber-attacks), riots, demonstrations, public disorders, civil disobedience or any worsening thereof;
force majeure events, including storms, fires, floods, earthquakes, hurricanes, tornados or other acts of God, natural disasters or calamities;
any epidemic, pandemic or disease outbreak (including COVID-19) or worsening thereof, including commercially reasonably responses thereto (including the COVID-19 measures implemented by governmental entities);
any effect to the extent attributable to the negotiation, execution, announcement, pendency or performance of the Merger Agreement or the consummation of transactions contemplated thereby, including the impact thereof on relationships, contractual or otherwise, of such party or any of its subsidiaries with customers, suppliers, lenders, partners, employees or regulators (without limiting any representation or warranty by such party in respect of the consequences resulting from the Merger Agreement or the consummation of the transactions contemplated thereby);
any failure to meet any internal or published projections (whether published by such party or any analysts) or forecasts or estimates of revenues or earnings or results of operations for any period (it being understood and agreed that the facts and circumstances giving rise to any such failure that are not otherwise excluded from the definition of a material adverse effect may be taken into account in determining whether there has been a material adverse effect);
any change in the price or trading volume of any publicly traded securities (it being understood and agreed that the facts and circumstances giving rise to such change that are not otherwise excluded from the definition of a material adverse effect may be taken into account in determining whether there has been a material adverse effect);
any reduction in the credit rating of such party or its subsidiaries (it being understood and agreed that the facts and circumstances giving rise to such reduction that are not otherwise excluded from the definition of a material adverse effect may be taken into account in determining whether there has been a material adverse effect);
any bankruptcy, insolvency or reorganization of any tenant under any lease or the commencement of any bankruptcy, insolvency or reorganization proceeding with respect to any tenant under any lease;
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acts required to be taken or not taken by such party or any of its subsidiaries under the terms of the Merger Agreement or taken or not taken at the written request of the other party;
with respect to WRI, any transaction related litigation brought against WRI or its subsidiaries, trust managers, directors, officers or employees (except if it has resulted in a non-appealable judicial determination definitively finding a breach of duty by the WRI board of trust managers) or, with respect to either party, any litigation alleging that the disclosure contained in this joint proxy statement/prospectus (whether filed in preliminary or definitive form) violates the federal securities laws (except if it has resulted in a non-appealable judicial determination definitively finding such a violation); and
with respect to WRI, the identity of Kimco or any of its affiliates or any communication by Kimco or any of its affiliates regarding plans, proposals, intentions or projections with respect to WRI, any of its subsidiaries, or their employees or business.
In addition, if the events referred to in the first, second, fourth, fifth and sixth bullets above have had a disproportionate adverse impact on such party and its subsidiaries, taken as a whole, relative to other companies operating in the industry in which such party operates, then the incremental impact of such event shall be taken into account for the purpose of determining whether a material adverse effect has occurred.
Conduct of Business Pending the Merger
Under the Merger Agreement, between April 15, 2021 and the earlier of the effective time of the Merger or the termination of the Merger Agreement in accordance with its terms, unless (i) expressly contemplated or required by the Merger Agreement, (ii) as set forth in the parties’ confidential disclosure letters, (iii) as required by applicable law or the regulations, (iv) to the extent action is reasonably taken (or reasonably omitted) in response to COVID-19 or the COVID-19 measures, provided that such action (or omission) is generally consistent with such party’s actions (or omissions) prior to April 15, 2021 and discussed in advance with the other party or (v) with the other party’s prior written consent (which consent may not be unreasonably withheld, conditioned or delayed), each of Kimco and WRI have agreed that they will, and will cause their respective subsidiaries to, conduct its business in the ordinary course consistent with past practice, to use reasonable best efforts to preserve its business organization intact, to maintain its material assets and properties in their current condition (normal wear and tear excepted) and its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors and tenants and to maintain the status of such party as a REIT.
In addition, between April 15, 2021 and the earlier of the effective time of the Merger or the termination of the Merger Agreement in accordance with its terms, unless (i) expressly contemplated or permitted by the Merger Agreement, (ii) as set forth in such party’s confidential disclosure letters, (iii) as required by applicable law or the regulations or (iv) with the other party’s prior written consent (which consent may not be unreasonably withheld, conditioned or delayed), each of Kimco and WRI have agreed that they will not, and will cause their subsidiaries not to:
(i) in the case of Kimco, amend or waive any provision under any of the governing documents of Kimco, in a manner that would materially and adversely affect the holders of WRI common shares and (ii) in the case of WRI, amend or waive any provision under any of the governing documents of WRI or amend or waive any provision under any of the governing documents of any subsidiary of WRI in any material respect;
split, combine, subdivide or reclassify any shares of capital stock or other equity or voting interests of such party or any of its subsidiaries;
enter into any new material line of business;
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 such party, or any of their respective subsidiaries, or other equity securities or ownership interests, other than (i) the declaration and payment of dividends, payable quarterly with declaration, record and payment dates consistent with past practice, at a rate not to exceed a quarterly rate, in the case of Kimco, of $0.17 per share of Kimco common stock and dividends in respect of its outstanding preferred stock pursuant to the terms of such preferred stock or, in the case of WRI, $0.23 per WRI common share with respect to the first quarterly dividend
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following April 15, 2021, and $0.30 per WRI common share thereafter, (ii) the declaration and payment of dividends or other distributions to such party, or to their operating partnerships, by any direct or indirect wholly owned subsidiary of such party, (iii) the declaration and payment of pro rata dividends or other distributions by such party’s operating partnership (iv) in the case of WRI, the declaration and payment of dividends or other distributions by any subsidiary of WRI in accordance with the organizational documents of such subsidiary as in effect prior to April 15, 2021 and provided to Kimco prior to April 15, 2021 and (v) in the case of Kimco, the declaration and payment of dividends or other distributions by any joint venture of Kimco as required pursuant to the organizational documents of such joint venture as in effect prior to April 15, 2021, except that either party, or any of their subsidiaries, are, subject to certain conditions, permitted to make distributions to maintain their qualification as a REIT under the Code or applicable state law and avoid the imposition of any entity level income or excise tax under the Code or applicable state law (which we refer to as a “special distribution”);
issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of capital stock or other equity or voting interests of such party or those of a subsidiary of such party, any voting debt, any stock appreciation rights, stock options, restricted shares or other equity-based awards or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares or equity interests or voting debt, or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, such shares or other equity interests or voting debt, or enter into any agreement with respect to any of the foregoing, other than (i) issuances of shares of Kimco common stock or WRI common shares, as applicable, upon the exercise or settlement of equity awards in accordance with the terms of the applicable equity plan and awards, (ii) issuances by a wholly owned subsidiary of equity to its parent company or to another wholly owned subsidiary or issuances of any directors’ qualifying shares in accordance with applicable law, (iii) in the case of Kimco, grants of Kimco equity awards made in the ordinary course of business consistent with past practice or otherwise required by any Kimco benefit plan and (iv) in the case of WRI, issuances of WRI common shares to any person that tenders any convertible partnership or joint venture units pursuant to the applicable organizational documents of such entity;
repurchase, redeem or otherwise acquire, or permit any subsidiary to redeem, purchase or otherwise acquire any shares of its capital stock or other equity interests or any securities convertible into or exercisable for any shares of its capital stock or other equity interests, except for (i) acquisitions of shares of common stock tendered by holders of equity awards in accordance with the terms of the applicable equity plan and awards as in effect on April 15, 2021 in order to satisfy obligations to pay the exercise price and/or tax withholding obligations with respect thereto, (ii) the creation of new wholly owned subsidiaries organized to conduct or continue activities otherwise permitted by the Merger Agreement, (iii) in the case of WRI, redemptions of limited partnership units pursuant to certain of WRI’s limited partnership and joint venture agreements as set forth in the Merger Agreement, (iv) in the case of Kimco, redemptions of Kimco joint venture or operating partnership interests pursuant to the organizational documents of such entities and (v) in the case of Kimco, pursuant to repurchase plans described in the Kimco SEC documents in the ordinary course of business;
adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, restructuring, recapitalization or reorganization, including any bankruptcy related action or reorganization other than transactions solely between or among wholly owned subsidiaries that would not prevent or materially impede, hinder or delay consummation of the Merger or result in any breach of any of certain tax representations of such party set forth in the Merger Agreement (without regard to any materiality or similar qualification);