Item 1.01 Entry
Into a Material Definitive Agreement.
On April 15, 2021, Kimco Realty Corporation, a Maryland corporation (the “Company”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Weingarten Realty Investors, a Texas real estate investment trust (“WRI”).
The Merger Agreement provides that, among other things and on the terms and subject to the conditions set forth therein, (1) WRI will be merged with and into
the Company (the “Merger”), with the Company continuing as the surviving corporation in the Merger, and, (2) at the effective time of the Merger (the “Effective Time”), each common share of beneficial interest, par value $0.03 per share, of WRI (other than certain shares as set forth in the Merger Agreement)
issued and outstanding immediately prior to the Effective Time will be automatically converted into the right to receive (i) $2.89 in cash (the “Cash Consideration”)
and (ii) 1.408 shares of common stock, par value $0.01 of the Company (together with cash in lieu of fractional shares, the “Stock Consideration” and together
with the Cash Consideration, the “Merger Consideration”).
Pursuant to the Merger Agreement, each award of restricted WRI common shares that is outstanding as of immediately prior to the Effective Time will become
vested at the Effective Time either by its terms or the terms of any of WRI’s benefit plans as a result of the occurrence of the Effective Time, with any applicable performance goals deemed satisfied at the target level, and, as of the Effective
Time, shall be canceled and converted into the right to receive the Merger Consideration with respect to each WRI common share subject to such WRI restricted share award.
The Company’s board of directors and WRI’s board of trust managers have each unanimously approved the Merger Agreement. The Company’s board of directors has
unanimously resolved to recommend that the Company’s common stockholders approve the Merger, and WRI’s board of trust managers has unanimously resolved to recommend that the WRI shareholders approve the Merger Agreement.
At the closing of the Merger, one member of the board of trust managers of WRI will be appointed to the Company’s board of directors.
The completion of the Merger is subject to satisfaction or waiver of certain conditions, including (1) the receipt of required approvals from the Company’s
common stockholders and WRI’s shareholders, (2) the authorization for listing of the Company’s common stock to be issued in connection with the Merger on the New York Stock Exchange, (3) the effectiveness of the registration statement on Form S-4 to
be filed by the Company pursuant to which shares of the Company’s common stock to be issued in connection with the Merger are registered with the Securities and Exchange Commission (the “SEC”), (4) the absence of any order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger or any law that makes the consummation of the Merger
illegal, (5) accuracy of each party’s representations and warranties, subject in most cases to materiality or material adverse effect qualifications, (6) material compliance with each party’s covenants and (7) the receipt by each of the Company 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 Internal Revenue Code of 1986, as amended (the “Code”), and of an opinion as to the qualification of WRI and the
Company, respectively, as a real estate investment trust (“REIT”) under the Code.
The Merger Agreement contains customary representations and warranties by each party. Additionally, the Merger Agreement provides for customary pre-closing
covenants of the Company and WRI, including, subject to certain exceptions, covenants relating to conducting their respective business in the ordinary course consistent with past practice, to maintain REIT status and refraining from taking certain
actions without the other party’s consent.
The Merger Agreement provides that, during the period from the date of the Merger Agreement until the Effective Time, WRI will be subject to certain
restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide non-public information to third parties and to engage in discussions with third parties regarding alternative acquisition proposals, subject to
customary exceptions.
The Merger Agreement contains certain termination rights for the Company and WRI. The Merger Agreement can be terminated by mutual written consent, or by
either party (1) if there is a final, non-appealable order, decree or ruling permanently enjoining or otherwise prohibiting the consummation of the Merger, (2) if the Merger has not been consummated by January 15, 2022, (3) if the Company’s common
stockholders fail to approve the Merger or WRI’s shareholders fail to approve the Merger Agreement or (4) if the other party has breached its representations, warranties or covenants in a way that prevents satisfaction of a closing condition, subject
to a cure period. In addition, the Company may terminate the Merger Agreement if WRI’s board of trust managers changes its recommendation with respect to the Merger Agreement, or upon a willful and material breach by WRI of its obligations not to
solicit alternative transaction proposals. WRI may terminate the Merger Agreement in order to enter into a definitive agreement with respect to a superior proposal (subject to compliance with certain terms and conditions included in the Merger
Agreement).
If the Merger Agreement is terminated because (1) WRI’s board of trust managers changes its recommendation with respect to the Merger Agreement, (2) WRI
terminates the Merger Agreement to enter into a definitive agreement with respect to a superior proposal or (3) WRI consummates or enters into an agreement for an alternative transaction within twelve months following termination under certain
circumstances, WRI must pay a termination fee of the lesser of $115 million or the maximum amount that could be paid to the Company without causing it to fail to meet the REIT requirements for such year. Any unpaid amount of the termination fee
payable by WRI will be escrowed and paid out over a five-year period.
On April 15, 2021, in connection with the execution of the Merger Agreement, the Company and WRI entered into voting agreements (the “Voting Agreements”) with each of Andrew M. Alexander and Stanford J. Alexander, who collectively beneficially own approximately 5.4% of the outstanding WRI common shares. 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 in favor of the Merger Agreement and
against any alternative acquisition proposal.
The foregoing description of the Merger Agreement and the transactions contemplated thereby in this Current Report on Form 8-K is only a summary and does not
purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and incorporated by reference herein.
The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information
about the Company. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement as of the specific dates therein, were solely for the benefit of the parties to the Merger
Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of
establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Merger Agreement and
should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover,
information concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.