As filed with the Securities and Exchange Commission on August 23, 2006
Registration No. 333-136152
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Kimco Realty Corporation
(Exact Name of Registrant as Specified in its Charter)
Maryland | 6798 | 13-2744380 | ||
(State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
3333 New Hyde Park Road
New Hyde Park, New York 11042
(516) 869-9000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Bruce M. Kauderer, Esq.
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
(516) 869-9000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Adam O. Emmerich David E. Shapiro Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019-6150 (212) 403-1000 |
Joseph B. Tyson Executive Vice President, Chief Financial Officer and Secretary Pan Pacific Retail Properties, Inc. 1631-B South Melrose Drive Vista, California 92081 (760) 727-1002 |
William J. Cernius Derek D. Dundas Latham & Watkins LLP 650 Town Center Drive, Suite 2000 Costa Mesa, California 92626-1925 (714) 540-1235 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effectiveness of this registration statement and the satisfaction or waiver of all conditions under the merger agreement described herein.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8 of the Securities Act or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8, may determine.
PAN PACIFIC RETAIL PROPERTIES, INC.
1631-B SOUTH MELROSE DRIVE
VISTA, CALIFORNIA 92081
(760) 727-1002
August 23, 2006
Dear Pan Pacific Stockholder:
You are cordially invited to attend a special meeting of the stockholders of Pan Pacific Retail Properties, Inc., a Maryland corporation, to be held at the Marriott San Diego Del Mar, 11966 El Camino Real, San Diego, CA 92130, on September 25, 2006, at 9:00 a.m. Pacific Time.
At the special meeting, you will be asked to consider and vote upon a proposal to approve the transactions contemplated by the merger agreement, including the merger of KRC Acquisition Inc., a subsidiary of Kimco Realty Corporation, with Pan Pacific. In connection with the merger, you will be entitled to receive $70 in cash for each share of Pan Pacific common stock that you own as of the completion of the merger. However, Kimco may elect to issue up to $10 of the per share merger consideration in the form of Kimco common stock. Kimco has the right to make this stock election any time prior to September 10, 2006 the date which is 15 days prior to the date of the Pan Pacific stockholder meeting. Kimco may revoke its stock election at any time if the revocation would not delay the Pan Pacific stockholders meeting by more than 10 business days. If Kimco makes the stock election, the number of shares of Kimco common stock that the Pan Pacific stockholders will receive will be determined based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the trading day which is two days prior to the Pan Pacific stockholders meeting or, if Kimco has elected to delay the closing, based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the closing date. You will no longer be a stockholder of Pan Pacific following the merger. Shares of Kimco common stock are traded on the New York Stock Exchange under the symbol KIM.
Pan Pacifics board of directors unanimously recommends that you vote FOR the approval of the merger. In arriving at its recommendations, the board of directors gave careful consideration to a number of factors described in the accompanying proxy statement.
Under the Maryland General Corporation Law, the affirmative vote, whether in person or by proxy, of at least a majority of the outstanding shares of Pan Pacific common stock is required to approve the merger.
The accompanying proxy statement/prospectus explains the proposed transactions and provides specific information concerning the special meeting. It also includes copies of the merger agreement and the written opinion of Houlihan Lokey Howard & Zukin Financial Advisors, Inc. Please read it carefully. In particular, you should carefully consider the discussion in the section entitled Risk Factors beginning on page 20.
Whether or not you plan to attend the special meeting, we urge you to please complete, sign and return your proxy as soon as possible in the enclosed self-addressed envelope so that your vote will be recorded. Even if you return your proxy card, you may still attend the special meeting and vote your common stock in person. Your proxy may be revoked at any time before it is voted by submitting a written revocation or a properly executed proxy bearing a later date to MacKenzie Partners Inc., or by attending and voting in person at the special meeting. For stock held in street name, you may revoke or change your vote by submitting instructions to your broker or nominee.
Please do not send your common stock certificates at this time. If the merger is completed, you will be sent instructions regarding the exchange of your certificates.
Stuart A. Tanz
President and Chief Executive Officer
Pan Pacific Retail Properties, Inc.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued under this proxy statement/prospectus or determined if this proxy statement/prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
|
This proxy statement/prospectus is dated August 23, 2006 and is expected to be first mailed to Pan Pacific stockholders on August 25, 2006.
SOURCES OF ADDITIONAL INFORMATION
This proxy statement/prospectus incorporates important business and financial information about Kimco and Pan Pacific that is not included or delivered with this document. This information is available without charge to Kimco and Pan Pacific stockholders upon written or oral request. You can obtain the documents incorporated by reference in this proxy statement/prospectus by requesting them in writing or by telephone from the appropriate company at the following addresses and telephone numbers:
Kimco 3333 New Hyde Park Road New Hyde Park, New York 11042 Attn.: Bruce M. Kauderer, Corporate Secretary Telephone: (516) 869-9000 |
Pan Pacific 1631-B South Melrose Drive Vista, California 92081 Attn.: Joseph B. Tyson, Corporate Secretary Telephone: (760) 727-1002 |
To obtain timely delivery of requested documents prior to the special meeting of Pan Pacific stockholders, you must request them no later than September 18, 2006, which is five business days prior to the date of the meeting.
Also see Where You Can Find More Information on page 89 of this proxy statement/prospectus.
AUTHORIZING YOUR PROXY BY TELEPHONE
Pan Pacific stockholders of record on the close of business on August 18, 2006, the record date for the Pan Pacific special meeting, may authorize their proxies by telephone by following the instructions on their proxy card or voting form. If you have any questions regarding whether you are eligible to authorize your proxy by telephone, you should contact MacKenzie Partners Inc. by telephone at 1-800-322-2885 (toll free) or by email at proxy@mackenziepartners.com.
PAN PACIFIC RETAIL PROPERTIES, INC.
1631-B SOUTH MELROSE DRIVE
VISTA, CALIFORNIA 92081
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON SEPTEMBER 25, 2006
Dear Pan Pacific Stockholder:
Notice is hereby given that Pan Pacific Retail Properties, Inc., a Maryland corporation, is holding a special meeting of its stockholders at the Marriott San Diego Del Mar, 11966 El Camino Real, San Diego, CA 92130, on September 25, 2006, at 9:00 a.m. Pacific Time, for the following purpose:
(1) to consider and vote on a proposal to approve the merger of KRC Acquisition Inc., a Maryland corporation and subsidiary of Kimco Realty Corporation, a Maryland corporation, with Pan Pacific Retail Properties, Inc., and to approve the other transactions contemplated pursuant to the Agreement and Plan of Merger, dated as of July 9, 2006, by and among Kimco Realty Corporation, KRC Acquisition Inc., KRC CT Acquisition Limited Partnership, KRC PC Acquisition Limited Partnership, Pan Pacific Retail Properties, Inc., CT Operating Partnership, L.P. and Western/Pinecreek, L.P.; and
(2) to approve an adjournment of the special meeting, if necessary, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the merger.
The merger agreement, which explains the merger, is attached as Annex A to the proxy statement/prospectus accompanying this notice and has been filed as an exhibit to Pan Pacifics quarterly report on 10-Q for the quarter ended June 30, 2006. Only stockholders of record at the close of business on August 18, 2006 will be entitled to notice of or to vote at the special meeting or any adjournment or postponement of that special meeting.
By Order of the Board of Directors
Joseph B. Tyson
Executive Vice President, Chief Financial Officer
and Secretary
Vista, California
August 23, 2006
PLEASE VOTE YOUR SHARES PROMPTLY. INSTRUCTIONS FOR VOTING ARE ON THE ENCLOSED PROXY CARD. IF YOU HAVE QUESTIONS ABOUT THE MERGER PROPOSAL OR ABOUT VOTING YOUR SHARES, PLEASE CALL MACKENZIE PARTNERS, INC. AT (212) 929-5500 (CALL COLLECT) OR (800) 322-2885 (TOLL FREE).
Page | ||
1 | ||
6 | ||
6 | ||
7 | ||
7 | ||
7 | ||
8 | ||
8 | ||
8 | ||
9 | ||
9 | ||
10 | ||
Interests of Certain Directors and Executive Officers of Pan Pacific in the Merger |
10 | |
10 | ||
11 | ||
11 | ||
11 | ||
11 | ||
11 | ||
Selected Summary Historical and Selected Unaudited Pro Forma Consolidated Financial Data |
12 | |
Summary Unaudited Pro Forma Consolidated Financial Information |
16 | |
17 | ||
18 | ||
18 | ||
19 | ||
20 | ||
20 | ||
21 | ||
23 | ||
24 | ||
24 | ||
24 | ||
24 | ||
24 | ||
24 | ||
25 | ||
25 | ||
26 | ||
26 | ||
27 | ||
27 | ||
27 | ||
28 | ||
28 | ||
28 | ||
31 |
i
Page | ||
35 | ||
35 | ||
46 | ||
46 | ||
46 | ||
46 | ||
46 | ||
INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS OF PAN PACIFIC IN THE MERGER |
48 | |
48 | ||
49 | ||
50 | ||
50 | ||
50 | ||
50 | ||
51 | ||
51 | ||
52 | ||
53 | ||
54 | ||
57 | ||
59 | ||
60 | ||
61 | ||
62 | ||
63 | ||
63 | ||
64 | ||
66 | ||
66 | ||
76 | ||
76 | ||
77 | ||
78 | ||
78 | ||
80 | ||
COMPARISON OF RIGHTS OF STOCKHOLDERS OF KIMCO AND STOCKHOLDERS OF PAN PACIFIC |
81 | |
81 | ||
85 | ||
85 | ||
87 | ||
88 | ||
89 | ||
89 | ||
89 |
ii
Page | ||
89 |
ANNEXES
A. | Agreement and Plan of Merger, dated as of July 9, 2006, by and among Kimco Realty Corporation, KRC Acquisition Inc., KRC CT Acquisition Limited Partnership, KRC PC Acquisition Limited Partnership, Pan Pacific Retail Properties, Inc., CT Operating Partnership, L.P. and Western/Pinecreek, L.P. |
B. | Opinion of Houlihan Lokey Howard & Zukin Financial Advisors, Inc., dated July 9, 2006 |
iii
QUESTIONS AND ANSWERS ABOUT THE MERGER
Q: | Why am I receiving these materials? |
A: | Kimco and Pan Pacific have agreed to the acquisition of Pan Pacific by Kimco under the terms of a merger agreement that is described in this proxy statement/prospectus. For the merger to occur, a majority of the stockholders of Pan Pacific must approve the merger. Pan Pacific will hold a special meeting of its stockholders to obtain the necessary stockholder approval. This proxy statement/prospectus contains important information about the merger and the meeting of the stockholders of Pan Pacific. We are sending you these materials to help you decide whether to approve the merger. |
Q: | Why are Kimco and Pan Pacific proposing to enter into the merger? |
A: | Pan Pacifics reasons for the merger include, among other things: |
| the value and form of the merger consideration; |
| favorable market conditions for selling Pan Pacific; |
| the belief of Pan Pacifics board of directors that the merger represents a more desirable alternative for its common stockholders than continuing to operate as an independent public company under Pan Pacifics current strategic business plan; |
| the determination by Pan Pacifics board of directors that the merger is more desirable than other strategic alternatives; |
| the opinion and analyses of Houlihan Lokey; |
| the likelihood that the transaction with Kimco will be completed; and |
| the existence of a limited termination right in the event of an unsolicited bona fide superior proposal. |
Kimcos reasons for the merger include, among other things:
| the belief of Kimcos board of directors, shared by Kimcos management, that the portfolio of neighborhood shopping centers that Kimco would acquire from Pan Pacific in the merger is of high quality and has positive long-term prospects; |
| the fact that Kimco could target a number of properties in Pan Pacifics portfolio for Kimcos strategic co-investment programs, which have historically produced solid investment returns and growth while further expanding Kimcos investment and property management business; |
| the structuring flexibility provided to Kimco in the merger agreement; and |
| the belief of Kimcos board of directors that the overall terms of the merger agreement are fair to Kimco. |
Q: | What will happen to Pan Pacific as a result of the merger? |
A: | A subsidiary of Kimco will merge with Pan Pacific. As a result of the merger, Pan Pacific will become, or will merge into, a subsidiary of Kimco. |
Q: | What will I receive in the merger? |
A: | Each Pan Pacific stockholder will receive $70 in cash for each share of Pan Pacific common stock that he or she owns. However, Kimco may elect to issue up to $10 of the per share merger consideration in the form of Kimco common stock. Kimco has the right to make this stock election any time prior to the date which is 15 days prior to the date of the Pan Pacific stockholders meeting. As soon as practicable after the date which is |
1
15 days prior to the date of the Pan Pacific stockholders meeting, Kimco and Pan Pacific will issue a joint press release announcing whether Kimco has made a stock election and the amount of such election, and will issue another joint press release as soon as practicable announcing the number of shares of Kimco common stock that Pan Pacific stockholders will receive in the merger. Kimco may revoke its stock election at any time if the revocation would not delay the Pan Pacific stockholders meeting by more than 10 business days. |
If Kimco makes the stock election, the number of shares of Kimco common stock that the Pan Pacific stockholders will receive will be determined based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the trading day which is two days prior to the Pan Pacific stockholders meeting or, if Kimco has elected to delay the closing, based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the closing date.
Assuming Kimco elects to deliver $10 of the per share merger consideration in the form of Kimco common stock and assuming the exchange of all outstanding exchangeable units of Pan Pacifics subsidiaries, Kimco common stock issued to Pan Pacifics stockholders and unitholders in the merger would represent approximately 4% of Kimcos outstanding common stock. Kimco common stock is publicly traded on the New York Stock Exchange under the symbol KIM.
Pan Pacific has agreed that, if requested by Kimco, it will enter into one or more asset sales. The closing of the asset sales would occur immediately prior to the effective time of the merger. If there are one or more asset sales, Pan Pacific will declare and pay a dividend to holders of Pan Pacific common stock in an amount equal to the net proceeds of such asset sales, and the cash consideration portion of the merger consideration will be reduced by the amount of such dividend.
Q: | What will be the effect on my cash dividend if Kimco does not delay the closing of the merger? |
A: | If Kimco has not elected to delay the closing as discussed in the next question and the closing of the merger occurs: |
| prior to September 15, then Pan Pacific stockholders would receive a pro rata portion of the regularly scheduled $0.64 per share dividend through the closing date; |
| on September 15, then Pan Pacific stockholders would receive the regularly scheduled $0.64 per share dividend; |
| after September 15 but prior to December 15, then Pan Pacific stockholders would not receive any additional dividends (other than the September 15 dividend); |
| on December 15, then Pan Pacific stockholders would receive the regularly scheduled $0.64 per share dividend (as well as the September 15 dividend); and |
| after December 15, then Pan Pacific stockholders would not receive any additional dividends (other than the September 15 and December 15 dividends). |
Q: | What happens to my cash dividend if Kimco delays the closing of the merger? |
A: | Kimco may elect to delay the closing for up to 45 days if it waives the closing conditions related to the representations and warranties of Pan Pacific. If Kimco delays the closing and the closing occurs: |
| prior to September 15, then Pan Pacific stockholders would receive a pro rata portion of the regularly scheduled $0.64 per share dividend through the closing date; |
| on September 15, then Pan Pacific stockholders would receive the regularly scheduled $0.64 per share dividend; |
| after September 15 and prior to December 15, then Pan Pacific stockholders would receive the September 15 dividend and additionally would receive a pro rata portion of the $0.64 per share dividend for each day after September 15 that the closing has been delayed; |
2
| on December 15, then Pan Pacific stockholders would receive the regularly scheduled $0.64 per share dividend (as well as the September 15 dividend); and |
| after December 15, then Pan Pacific stockholders would receive the September 15 and December 15 dividends and additionally would receive a pro rata portion of the $0.64 per share dividend for each day after December 15 that the closing has been delayed. |
Q: | Will any Kimco common stock to be delivered as part of the merger consideration be revalued if Kimco elects to delay the closing? |
A: | If Kimco elects to delay the closing and has made and not revoked a stock election, then the value of the Kimco common stock will be based on the closing price average over the 10 trading days immediately preceding the closing date. |
Q: | Where and when is the special meeting? |
A: | The special meeting will take place at the Marriott San Diego Del Mar, 11966 El Camino Real, San Diego, CA 92130, on September 25, 2006, at 9:00 a.m., Pacific Time. |
Q: | What vote is required to approve the merger? |
A: | In order to complete the merger, holders of a majority of the outstanding shares of Pan Pacific common stock must affirmatively vote to approve the merger. |
Q: | How does Pan Pacifics board of directors recommend that I vote? |
A: | Pan Pacifics board unanimously recommends that Pan Pacific stockholders vote FOR the proposal to approve the merger. For a more complete description of the recommendation of Pan Pacifics board, see page 35. |
Q: | What do I need to do now? |
A: | After you have read this document carefully, please indicate on the enclosed proxy card how you want to vote. Sign and mail the proxy card in the enclosed prepaid return envelope as soon as possible. You should indicate your vote now, even if you expect to attend the special meeting and vote in person. Indicating your vote now will not prevent you from later canceling or revoking your proxy and changing your vote at any time before the vote at the special meeting and will ensure that your shares are voted if you later find you cannot attend the special meeting. |
Q: | What should I do if my broker holds my shares in street name? |
A: | Please contact your broker to obtain instructions on how to vote your shares. |
Q: | Can my broker vote my shares which are held in street name? |
A: | Your broker is not able to vote your shares that are held in street name for you without your instructions. If you do not provide your broker with instructions on how to vote your shares held in street name, your broker will not be permitted to vote your shares on the proposals being presented at the special meeting. Because the merger requires the affirmative vote of the holders of a majority of Pan Pacifics outstanding shares of common stock, a failure to provide your broker instructions will have the same effect as a vote against the merger. You should therefore be sure to provide your broker with instructions on how to vote your shares. |
Q: | What do I do if I want to change my vote? |
A: | You may change your vote in three ways: |
| by delivering a written notice to the corporate secretary of Pan Pacific prior to the voting of the shares stating that you would like to revoke your proxy; |
3
| by signing a later-dated proxy card and delivering it to the corporate secretary of Pan Pacific prior to the voting of the shares; or |
| by attending the special meeting and voting in person; however, your attendance alone will not revoke your proxy or change your vote. |
If you have instructed a broker how to vote your shares, you must follow the directions provided by your broker to change those instructions.
Q: | Should I send my certificates representing my Pan Pacific common stock? |
A: | No. After we complete the merger, Kimco will send former holders of Pan Pacific common stock written instructions for exchanging their share certificates. |
Q: | When do you expect to complete the merger? |
A: | We are working toward completing the merger as quickly as possible. We must first obtain the approval of Pan Pacific stockholders at the special meeting. We expect to complete the merger during the fourth quarter of 2006. However, we cannot assure you as to when, or if, the merger will occur. In addition, the merger agreement provides that Kimco may delay the closing date for up to 45 days following the satisfaction of the closing conditions. |
Q: | Where can I find more information about the companies? |
A: | Kimco and Pan Pacific each file reports and other information with the Securities and Exchange Commission (SEC). You may read and copy this information at the SECs public reference facilities. Please call the SEC at 1-800-732-0330 for information about these facilities. This information is also available at the offices of the New York Stock Exchange, and at the Internet site the SEC maintains at www.sec.gov In addition, Pan Pacifics SEC filings are available at the Internet site Pan Pacific maintains at www.pprp.com, and Kimcos SEC filings are available at the Internet site Kimco maintains at www.kimcorealty.com. Information contained on Kimcos website, Pan Pacifics website or the website of any other person is not incorporated by reference into this joint proxy statement/prospectus, and you should not consider information contained on those websites as part of this joint proxy statement/prospectus. You can also request copies of these documents from us. See Where You Can Find More Information on page 88. |
Q: | Who can help answer my questions? |
A: | If you have more questions about the merger, you should contact: |
MacKenzie Partners, Inc. by telephone at 1-212-929-5500
(call collect) or 1-800-322-2885 (toll free) or by email at
proxy@mackenziepartners.com
If your broker or bank holds your shares, you should also contact your broker or bank for additional information.
or
Joseph B. Tyson
Pan Pacific Retail Properties, Inc.
1631-B South Melrose Drive
Vista, California 92081
Telephone: (760) 727-1002
Facsimile: (760) 727-1430
4
If you would like additional copies of this proxy statement/prospectus, you should contact:
Investor Relations
Pan Pacific Retail Properties, Inc.
1631-B South Melrose Drive
Vista, California 92081
Telephone: (760) 727-1002
Facsimile: (760) 727-1430
5
This summary highlights selected information from this document. It may not contain all of the information that is important to you. To understand the merger fully and for a more complete description of the legal terms of the merger, you should read carefully this entire document and the documents to which we have referred you. See Where You Can Find More Information. We have included page references parenthetically to direct you to a more complete description of the topics in this summary.
Kimco Realty Corporation (Page 27)
3333 New Hyde Park Road
New Hyde Park, New York 11042
(516) 869-9000
Kimco, a Maryland corporation and a publicly-traded real estate investment trust, has specialized in shopping center acquisitions, development and management for over 45 years. Kimco owns and operates the nations largest portfolio of neighborhood and community shopping centers with interests in 1,118 properties comprising approximately 143.6 million square feet of leasable space located throughout 45 states, Canada, Mexico and Puerto Rico.
KRC Acquisition Inc. is a newly-formed subsidiary of Kimco that was formed solely for the purpose of effecting the merger. KRC Acquisition Inc. has not conducted and will not conduct any business prior to the merger. KRC Acquisitions executive offices are located at 3333 New Hyde Park Road, New Hyde Park, New York 11042 and its telephone number is (516) 869-9000.
Pan Pacific Retail Properties, Inc. (Page 27)
1631-B South Melrose Drive
Vista, California 92081
(760) 727-1002
Pan Pacific Retail Properties, Inc., a Maryland corporation, is an equity real estate investment trust that owns and operates community and neighborhood shopping centers, predominately grocery-anchored, located in the western United States. Pan Pacific common stock is listed on the New York Stock Exchange under the symbol PNP. As of June 30, 2006, Pan Pacifics portfolio totaled 138 properties, encompassing approximately 22.6 million square feet, and was 96.7% leased to 3,485 tenants. The portfolio is diversified across four Western U.S. markets: Northern California, Southern California, the Pacific Northwest and Nevada.
The Pan Pacific Special Meeting
The Meeting Time and Place (Page 24)
The special meeting will be held on September 25, 2006, at the Marriott San Diego Del Mar, 11966 El Camino Real, San Diego, CA 92130, starting at 9:00 a.m., Pacific Time.
Stockholders Entitled to Vote (Page 24)
Holders of record of shares of Pan Pacific common stock at the close of business on the record date of August 18, 2006 are entitled to notice of, and to vote at, the special meeting. On the record date, there were 40,774,388 shares of Pan Pacific common stock outstanding, each of which will be entitled to one vote on each matter to be acted upon at the special meeting.
6
Proposals to be Considered at the Meeting (Page 24)
At the special meeting, Pan Pacific stockholders will be asked to consider and vote upon:
| the proposal to approve the transactions contemplated by the merger agreement; and |
| any other matters that are properly brought before the special meeting or any adjournment or postponement of the meeting. |
Vote Required (Page 24)
The merger requires the approval of the stockholders of Pan Pacific by the affirmative vote of at least a majority of the outstanding shares of Pan Pacific common stock held of record on August 18, 2006. As of the record date, directors and officers of Pan Pacific owned and were entitled to vote 686,425 shares of Pan Pacific common stock, collectively, which represented approximately 1.7% of the outstanding shares of Pan Pacific common stock.
In the merger, KRC Acquisition Inc., a subsidiary of Kimco, will either be merged with and into Pan Pacific, with Pan Pacific surviving as a subsidiary of Kimco, or Pan Pacific will merge with and into KRC Acquisition Inc., with KRC Acquisition Inc. surviving. In connection with the merger, you will be entitled to receive $70 in cash in respect of each share of common stock of Pan Pacific that you own immediately prior to the merger. However, Kimco may elect to issue up to $10 of the per share merger consideration in the form of Kimco common stock. Kimco has the right to make this stock election any time prior to the date which is 15 days prior to the date of the Pan Pacific stockholders meeting. As soon as practicable after the date which is 15 days prior to the date of the Pan Pacific stockholders meeting, Kimco and Pan Pacific will issue a joint press release announcing whether Kimco has made a stock election and the amount of such election, and will issue another joint press release as soon as practicable announcing the number of shares of Kimco common stock that Pan Pacific stockholders will receive in the merger. Kimco may revoke its stock election at any time if the revocation would not delay the Pan Pacific stockholders meeting by more than 10 business days. If Kimco makes the stock election, the number of shares of Kimco common stock that the Pan Pacific stockholders will receive will be determined based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the trading day which is two days prior to the Pan Pacific stockholders meeting or, if Kimco has elected to delay the closing, based on the closing price average of Kimco common stock for over the 10 trading days immediately preceding the closing date. Pan Pacific has agreed that, if requested by Kimco, it will enter into one or more asset sales. The closing of the asset sales would occur immediately prior to the effective time of the merger. If there are one or more asset sales, Pan Pacific will declare and pay a dividend to holders of Pan Pacific common stock in an amount equal to the net proceeds of such asset sales, and the cash consideration portion of the merger consideration will be reduced by the amount of such dividend.
The merger agreement is attached to this proxy statement/prospectus as Annex A and has been filed as an exhibit to Pan Pacifics quarterly report on Form 10-Q for the quarter ended June 30, 2006. We encourage you to read the merger agreement as it is the legal document that governs the merger.
In evaluating the merger, you should carefully consider the Risk Factors beginning on page 20.
Pan Pacifics Recommendation to its Stockholders
Pan Pacifics board voted unanimously to approve the merger. Pan Pacifics board believes that the merger is in the best interests of Pan Pacific and its stockholders and recommends that Pan Pacific stockholders vote FOR the merger.
7
Fairness Opinion Regarding Merger Consideration (Page 35)
In deciding to approve the merger, on July 9, 2006 the Pan Pacific board received an opinion from Houlihan Lokey Howard & Zukin Financial Advisors, Inc. (Houlihan Lokey), dated July 9, 2006, that, as of that date, based upon and subject to the assumptions, factors, qualifications and limitations set forth in its written opinion, the merger consideration to be received by the holders of Pan Pacific common stock and holders of OP Units (other than holders of OP Units who elect to remain limited partners of the respective entities surviving the partnership mergers) in connection with the merger is fair to such holders from a financial point of view.
The full text of the opinion of Houlihan Lokey is attached as Annex B to this proxy statement/prospectus and you are urged to read the opinion carefully and in its entirety. The opinion of Houlihan Lokey was provided for the use and benefit of the Pan Pacific board in connection with its consideration of the merger and addresses only the fairness to holders of Pan Pacific common stock and holders of OP Units of the merger consideration from a financial point of view. The Houlihan Lokey opinion is not intended to, and does not, address the merits of the underlying decision by Pan Pacific to engage in the merger and is not intended to, and does not, constitute a recommendation to Pan Pacific stockholders or to the holders of OP Units as to whether or not to vote on the merger or any matter related to the merger or the OP Units.
Ownership of Kimco Following the Merger
Assuming Kimco elects to deliver $10 of the per share merger consideration in the form of Kimco common stock and assuming the exchange of all outstanding exchangeable units of Pan Pacifics subsidiaries, Kimco common stock issued to Pan Pacifics stockholders and unitholders in the merger would represent approximately 4% of Kimcos outstanding common stock.
Conditions to the Merger (Page 59)
The obligations of the parties to complete the merger are subject to the following conditions:
| approval of the merger by Pan Pacific stockholders; |
| absence of any statute, rule, regulation, judgment, decree, injunction or order precluding the consummation of the merger; |
| receipt of governmental and regulatory approvals required to complete the merger. |
The obligations of Kimco to complete the merger are further conditioned on:
| accuracy of the representations and warranties of Pan Pacific, CT Operating Partnership and Western/Pinecreek (subject to materiality standards in the merger agreement); |
| compliance in all material respects by Pan Pacific with its covenants and agreements under the merger agreement; |
| absence of any governmental action as a result of the merger reasonably expected to have a material adverse effect on Kimco or Pan Pacific; and |
| receipt of a tax opinion regarding Pan Pacifics REIT status. |
The obligations of Pan Pacific to complete the merger are further conditioned on:
| accuracy of representations and warranties of Kimco (subject to materiality standards in the merger agreement); |
| compliance in all material respects by Kimco with its covenants and agreements under the merger agreement; |
8
| absence of any governmental action as a result of the merger reasonably expected to result in legal action against a Pan Pacific director, officer or employee; and |
| absence of any governmental action as a result of the merger reasonably expected to have a material adverse effect on Kimco, but only if Kimco has made and not revoked a stock election. |
In addition, the following conditions also must be met if Kimco makes and does not revoke a stock election:
| effectiveness of the registration statement with respect to Kimco common stock; |
| NYSE listing approval for Kimco common stock to be issued; and |
| receipt of a tax opinion regarding Kimcos REIT status. |
Treatment of Pan Pacific Stock Options and Restricted Stock (Page 51)
In connection with the merger, all outstanding options to purchase Pan Pacific common stock will be canceled and converted into the right to receive a cash amount equal to the product of (x) the excess of $70 over the per share exercise price of the option and (y) the number of shares of Pan Pacific common stock underlying the unexercised portion of the option.
Each share of Pan Pacific restricted stock outstanding immediately before the merger will become fully vested immediately before the merger.
Either Kimco or Pan Pacific can terminate the merger agreement:
| by mutual written consent; |
| if the merger has not been completed by January 9, 2007 (other than because of a breach of the merger agreement by the party seeking termination); |
| if an order, decree or injunction makes the merger illegal or prohibits the merger; or |
| if Pan Pacific has not received the requisite stockholder approval, provided that Pan Pacific cannot terminate for this reason if it breaches its obligations to recommend the merger or its obligations related to timely calling the meeting. |
Kimco can also terminate the merger agreement:
| upon a material breach by Pan Pacific of any covenant or agreement contained in the merger agreement or if any representation or warranty of Pan Pacific becomes untrue in any material respect (except if such breach is capable of being cured by Pan Pacific, and Pan Pacific is attempting in good faith to cure the breach); or |
| upon the occurrence of any of the following: |
| Pan Pacifics board qualifies, withdraws or modifies its recommendation of the merger; |
| Kimco requests the Pan Pacific board to publicly reconfirm its recommendation and the board fails to do so within 10 business days; |
| Pan Pacifics board recommends to Pan Pacific stockholders an alternative acquisition, merger or similar transaction; |
| Pan Pacific fails to timely call and hold the special meeting; or |
| Pan Pacific materially breaches the no solicitation provisions of the merger agreement. |
9
Pan Pacific can also terminate the merger agreement upon a material breach by Kimco of any covenant or agreement contained in the merger agreement or if any representation or warranty of Kimco becomes untrue in any material respect (except if such breach is capable of being cured by Kimco, and Kimco is attempting in good faith to cure the breach).
Break-Up Fee and Expenses (Page 60)
In the event that the merger agreement is terminated under the circumstances described below, Pan Pacific will be obligated to pay Kimco a termination fee equal to $65.0 million less the amount of any expenses that have been previously paid to Kimco.
Kimco is entitled to the break-up fee if the merger agreement is terminated because:
| Pan Pacific accepted a superior proposal; |
| the Pan Pacific board withdrew, conditioned or qualified its recommendation of the merger; |
| Kimco requested that the Pan Pacific board publicly reconfirm its recommendation of the merger but the Pan Pacific board failed to do so within 10 business days; |
| the Pan Pacific board recommended a competing proposal; |
| Pan Pacific failed to timely call and conduct the stockholders meeting; or |
| Pan Pacific breached the no solicitation provisions of the merger agreement in any material respect. |
Pan Pacific must pay Kimcos expenses, up to $11.0 million, if an acquisition proposal has been received by an officer or director of Pan Pacific or by its advisors or at the time of the termination of the merger agreement an acquisition proposal has been publicly proposed or publicly announced and the merger agreement has been terminated because:
| the merger has not been completed within six months of signing; |
| Pan Pacific stockholders did not approve the merger; or |
| Pan Pacific materially breached the merger agreement such that a closing condition would not be satisfied. |
In addition, if within 12 months of any termination resulting in payment of Kimcos expenses, Pan Pacific completes an alternative transaction or announces an agreement for an alternative transaction, Pan Pacific will pay Kimco the break-up fee (less any expenses previously paid).
Interests of Certain Directors and Executive Officers of Pan Pacific in the Merger (Page 48)
In considering the recommendation of Pan Pacifics board, you should be aware that members of Pan Pacifics management and board of directors may have interests in the merger that are different from or in addition to, and, therefore, may conflict with, your interests as a Pan Pacific stockholder generally. These interests include, among other things, cash severance benefits following qualifying terminations under their employment agreements, the acceleration of vesting of all outstanding restricted stock held by such persons and continuing indemnification rights. None of Pan Pacifics executive officers or directors holds outstanding stock options other than one director who holds 2,000 options. See Interests of Directors and Executive Officers of Pan Pacific in the Merger.
The members of Pan Pacifics board were informed of the foregoing and considered them when they approved the merger.
Accounting Treatment (Page 46)
The merger will be accounted for under the purchase method for accounting and financial reporting purposes.
10
Material United States Federal Income Tax Considerations (Page 62)
The receipt of the merger consideration for each share of Pan Pacific common stock pursuant to the merger will be a taxable transaction for United States federal income tax purposes. Generally for United States federal income tax purposes, a Pan Pacific stockholder will recognize gain or loss as a result of the merger measured by the difference, if any, between the merger consideration per share and their adjusted tax basis in that share. A Pan Pacific stockholder may also receive a dividend from Pan Pacific in connection with the merger. Under certain circumstances, Kimco or Pan Pacific may be required to withhold a portion of the merger consideration or the above-described dividend under applicable tax laws. Tax matters can be complicated, and the tax consequences of the merger to a Pan Pacific stockholder will depend on their particular tax situation. Pan Pacific stockholders are urged to consult their tax advisors regarding the tax consequences of the merger and related transactions.
Pan Pacific stockholders should read Material United States Federal Income Tax Considerations for a more complete discussion of the federal income tax consequences of the merger.
Neither Kimco nor Pan Pacific is aware of any material federal or state regulatory approvals which must be obtained in connection with the merger.
Appraisal or Dissenters Rights (Page 46)
Maryland law does not provide any appraisal rights or dissenters rights for Kimco or Pan Pacific stockholders in connection with the merger.
Litigation Related to the Merger (Page 46)
As of the date of this proxy statement/prospectus, Pan Pacific is aware of three purported class action lawsuits that have been filed against Pan Pacific and its directors in connection with the merger. Among other things, the lawsuits seek to enjoin the completion of the merger unless and until Pan Pacific implements a procedure to obtain the highest price for the company.
On August 23, 2006, the parties reached an agreement in principle to settle two of the lawsuits. The proposed settlement is subject to court approval following notice to the classes and a hearing.
While the third case is in its early stages, Pan Pacific believes that the case is without merit. The parties intend to contest the lawsuit vigorously.
The Rights of Pan Pacific Stockholders Will Change (Page 81)
The rights of Pan Pacific stockholders are determined by Maryland law and by Pan Pacifics charter and bylaws. If Kimco makes a stock election, when the merger is completed, Pan Pacific stockholders will become stockholders of Kimco. The rights of Kimco stockholders are determined by Maryland law and Kimcos charter and bylaws. As a result of these different organizational documents, Pan Pacific stockholders will have different rights as Kimco stockholders than they currently have as Pan Pacific stockholders.
11
Selected Summary Historical and Selected Unaudited Pro Forma Consolidated Financial Data
We are providing the following information to aid you in your analysis of the financial aspects of the merger. We derived this information from the audited consolidated financial statements of each of Kimco and Pan Pacific for the years 2001 through 2005 and the unaudited consolidated financial statements of each of Kimco and Pan Pacific as of and for the six months ended June 30, 2006 and 2005. This information is only a summary and you should read it in conjunction with the historical and unaudited pro forma consolidated financial statements and related notes contained in the annual reports, quarterly reports and other information regarding Kimco and Pan Pacific filed with the SEC and incorporated by reference or included in this proxy statement/prospectus. See Where You Can Find More Information.
Selected Historical Financial Data of Kimco
Kimcos historical consolidated financial data for the annual periods presented below has been derived from its audited consolidated financial statements previously filed with the SEC. The selected historical consolidated financial data for Kimco as of and for the periods ended June 30, 2006 and 2005 are unaudited and were prepared in accordance with accounting principles generally accepted in the United States of America applied to interim financial information. In the opinion of Kimcos management, all adjustments necessary for a fair presentation of results of operations for these interim periods have been included. These adjustments consist only of normal recurring accruals. Because of seasonal and other factors, results for interim periods are not necessarily indicative of the results to be expected for the full year. This information is only a summary and you should read it together with Kimcos historical financial statements and related notes contained in the annual reports, quarterly reports and other information that we have filed with the SEC and incorporated by reference. See Where You Can Find More Information.
12
KIMCO REALTY CORPORATION
SELECTED FINANCIAL DATA
(In thousands, except per share data)
Six Months 2006 |
Six Months 2005 |
Year Ended December 31, (2) | |||||||||||||||||||
2005 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||||
Operating Data: |
|||||||||||||||||||||
Revenues from rental property (1) |
$ | 293,314 | $ | 254,274 | $ | 519,102 | $ | 504,444 | $ | 463,572 | $ | 416,319 | $ | 415,064 | |||||||
Interest expense (3) |
$ | 81,912 | $ | 58,635 | $ | 127,564 | $ | 107,177 | $ | 102,391 | $ | 84,885 | $ | 86,088 | |||||||
Depreciation and amortization (3) |
$ | 65,121 | $ | 51,854 | $ | 105,080 | $ | 98,926 | $ | 82,532 | $ | 67,470 | $ | 65,761 | |||||||
Gain on sale of development properties |
$ | 14,079 | $ | 17,857 | $ | 33,636 | $ | 16,835 | $ | 17,495 | $ | 15,880 | $ | 13,418 | |||||||
Gain on transfer/sale of operating properties, net (3) |
$ | 1,394 | $ | 2,151 | $ | 2,833 | $ | | $ | 3,177 | $ | | $ | 3,040 | |||||||
Provision for income taxes |
$ | 3,952 | $ | 11,970 | $ | 11,148 | $ | 8,320 | $ | 8,514 | $ | 12,904 | $ | 19,376 | |||||||
Income from continuing operations |
$ | 175,093 | $ | 160,458 | $ | 332,546 | $ | 279,530 | $ | 242,613 | $ | 234,453 | $ | 210,875 | |||||||
Income per common share, from continuing operations (4): |
|||||||||||||||||||||
Basic |
$ | 0.72 | $ | 0.68 | $ | 1.42 | $ | 1.20 | $ | 1.03 | $ | 1.03 | $ | 0.97 | |||||||
Diluted |
$ | 0.71 | $ | 0.67 | $ | 1.39 | $ | 1.18 | $ | 1.01 | $ | 1.02 | $ | 0.95 | |||||||
Weighted average number of shares of common stock (4): |
|||||||||||||||||||||
Basic |
234,647 | 225,951 | 226,641 | 222,859 | 214,184 | 208,916 | 192,634 | ||||||||||||||
Diluted |
240,065 | 230,042 | 230,868 | 227,143 | 217,540 | 210,922 | 202,326 | ||||||||||||||
Cash dividends declared per common share |
$ | 0.66 | $ | 0.61 | $ | 1.27 | $ | 1.16 | $ | 1.10 | $ | 1.05 | $ | 0.98 | |||||||
As of 2006 |
As of 2005 |
As of December 31, | |||||||||||||||||||
2005 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||||
Balance Sheet Data: |
|||||||||||||||||||||
Real estate, before accumulated depreciation |
$ | 5,434,238 | $ | 4,239,014 | $ | 4,560,406 | $ | 4,092,222 | $ | 4,174,664 | $ | 3,398,971 | $ | 3,201,364 | |||||||
Total assets |
$ | 6,761,850 | $ | 4,989,822 | $ | 5,534,636 | $ | 4,749,597 | $ | 4,641,092 | $ | 3,758,350 | $ | 3,387,342 | |||||||
Total debt |
$ | 3,138,854 | $ | 2,266,526 | $ | 2,691,196 | $ | 2,118,622 | $ | 2,154,948 | $ | 1,576,982 | $ | 1,328,079 | |||||||
Total stockholders equity |
$ | 2,893,280 | $ | 2,313,575 | $ | 2,387,214 | $ | 2,236,400 | $ | 2,135,846 | $ | 1,908,800 | $ | 1,892,647 |
(1) | Does not include (i) revenues from rental property relating to unconsolidated joint ventures, (ii) revenues relating to the investment in retail stores leases and (iii) revenues from properties included in discontinued operations. |
(2) | All years have been adjusted to reflect the impact of operating properties sold during the six months ended June 30, 2006 and the years ended December 31, 2005, 2004, 2003 and 2002 and properties classified as held for sale as of June 30, 2006 and December 31, 2005, which are reflected in discontinued operations. |
(3) | Does not include amounts reflected in discontinued operations. |
(4) | On July 21, 2005, Kimcos Board of Directors declared a two-for-one split (the Stock Split) of Kimcos common stock which was effected in the form of a stock dividend paid on August 23, 2005 to stockholders of record on August 8, 2005. All historical share and per share data has been adjusted to reflect this Stock Split. |
13
Selected Historical Financial Data of Pan Pacific
Pan Pacifics historical consolidated financial data for the annual periods presented below has been derived from its audited consolidated financial statements previously filed with the SEC. The selected historical consolidated financial data for Pan Pacific as of and for the periods ended June 30, 2006 and 2005 are unaudited and were prepared in accordance with generally accepted accounting principles applied to interim financial information. In the opinion of Pan Pacifics management, all adjustments necessary for a fair presentation of results of operations for these interim periods have been included. These adjustments consist only of normal recurring accruals. Because of seasonal and other factors, results for interim periods are not necessarily indicative of the results to be expected for the full year. This information is only a summary and you should read it together with Pan Pacifics historical consolidated financial statements and related notes contained in the annual reports, quarterly reports and other information that Pan Pacific has filed with the SEC and incorporated by reference. See Where You Can Find More Information.
14
PAN PACIFIC RETAIL PROPERTIES, INC.
SELECTED FINANCIAL DATA
(In thousands, except per share data)
Six Months Ended June 30, |
Year Ended December 31, | ||||||||||||||||||||
2006 | 2005 | 2005 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||
revised (1) | revised (1) | revised (1) | revised (1) | revised (1) | revised (1) | ||||||||||||||||
Statements of Income Data: |
|||||||||||||||||||||
Total revenue |
$ | 158,964 | $ | 147,549 | $ | 303,029 | $ | 277,763 | $ | 252,823 | $ | 180,699 | $ | 165,074 | |||||||
Property and general and administrative expenses |
$ | 43,165 | $ | 40,511 | $ | 82,811 | $ | 79,110 | $ | 71,723 | $ | 48,194 | $ | 43,516 | |||||||
Depreciation and amortization |
$ | 31,468 | $ | 27,298 | $ | 56,103 | $ | 48,011 | $ | 39,266 | $ | 29,976 | $ | 27,773 | |||||||
Interest expense |
$ | 36,280 | $ | 33,720 | $ | 69,352 | $ | 62,619 | $ | 58,473 | $ | 45,926 | $ | 46,196 | |||||||
Income from continuing operations (2) |
$ | 48,736 | $ | 47,687 | $ | 96,838 | $ | 91,580 | $ | 86,348 | $ | 60,972 | $ | 56,315 | |||||||
Discontinued operations |
$ | 2,922 | $ | 727 | $ | 14,467 | $ | 10,409 | $ | 18,088 | $ | 16,680 | $ | 7,907 | |||||||
Net income |
$ | 51,658 | $ | 48,414 | $ | 111,305 | $ | 101,989 | $ | 104,436 | $ | 77,652 | $ | 64,222 | |||||||
Basic earnings per share: |
|||||||||||||||||||||
Income from continuing operations |
$ | 1.20 | $ | 1.18 | $ | 2.40 | $ | 2.28 | $ | 2.19 | $ | 1.82 | $ | 1.77 | |||||||
Discontinued operations |
$ | 0.07 | $ | 0.02 | $ | 0.35 | $ | 0.26 | $ | 0.46 | $ | 0.50 | $ | 0.25 | |||||||
Net income |
$ | 1.27 | $ | 1.20 | $ | 2.75 | $ | 2.54 | $ | 2.65 | $ | 2.32 | $ | 2.02 | |||||||
Diluted earnings per share: |
|||||||||||||||||||||
Income from continuing operations |
$ | 1.20 | $ | 1.18 | $ | 2.38 | $ | 2.26 | $ | 2.16 | $ | 1.81 | $ | 1.73 | |||||||
Discontinued operations |
$ | 0.07 | $ | 0.01 | $ | 0.35 | $ | 0.26 | $ | 0.45 | $ | 0.49 | $ | 0.24 | |||||||
Net income |
$ | 1.27 | $ | 1.19 | $ | 2.73 | $ | 2.52 | $ | 2.61 | $ | 2.30 | $ | 1.97 | |||||||
Distributions declared per share |
$ | 1.28 | $ | 1.18 | $ | 2.36 | $ | 2.17 | $ | 2.03 | $ | 1.90 | $ | 1.82 | |||||||
As of June 30, | As of December 31, | ||||||||||||||||||||
2006 | 2005 | 2005 | 2004 | 2003 | 2002 | 2001 | |||||||||||||||
Balance Sheet Data: |
|||||||||||||||||||||
Properties, net |
$ | 1,973,736 | $ | 1,916,292 | $ | 1,982,153 | $ | 1,892,131 | $ | 1,773,894 | $ | 1,306,033 | $ | 1,233,189 | |||||||
Total assets |
$ | 2,086,512 | $ | 2,021,446 | $ | 2,098,764 | $ | 1,995,444 | $ | 1,863,348 | $ | 1,424,240 | $ | 1,339,290 | |||||||
Notes payable |
$ | 356,604 | $ | 359,266 | $ | 390,132 | $ | 343,736 | $ | 345,077 | $ | 239,541 | $ | 229,135 | |||||||
Line of credit payable |
$ | 81,500 | $ | 121,900 | $ | 44,500 | $ | 113,000 | $ | 48,250 | $ | 66,000 | $ | 165,300 | |||||||
Senior notes |
$ | 654,021 | $ | 554,375 | $ | 653,908 | $ | 554,290 | $ | 503,708 | $ | 428,677 | $ | 273,800 | |||||||
Minority interests |
$ | 18,146 | $ | 29,493 | $ | 28,794 | $ | 30,079 | $ | 32,325 | $ | 15,804 | $ | 20,748 | |||||||
Stockholders equity |
$ | 939,168 | $ | 919,797 | $ | 938,043 | $ | 915,134 | $ | 892,285 | $ | 648,635 | $ | 622,458 |
(1) | Pan Pacifics consolidated statements of income and consolidated statements of cash flows have been revised from those originally reported to separately reflect the results of discontinued operations for properties that were sold during the six months ended June 30, 2006 and during the years ended December 31, 2005, 2004, 2003 and 2002. The revision had no impact on Pan Pacifics consolidated balance sheets or statements of stockholders equity. The revision had no impact on net income or net income per share of common stock for the six months ended June 30, 2005 and for the years ended December 31, 2005, 2004, 2003, 2002 and 2001. |
(2) | Income from continuing operations includes minority interests for all periods presented and gain on sale of real estate for the year ended December 31, 2001. |
15
Summary Unaudited Pro Forma Consolidated Financial Information
In the table below, we present pro forma consolidated balance sheet information for Kimco and Pan Pacific as of June 30, 2006, as if the merger had been completed on June 30, 2006. We also present pro forma consolidated statement of income information for Kimco and Pan Pacific for the fiscal year ended December 31, 2005 and the six months ended June 30, 2006, as if the merger had been completed on January 1, 2005. The merger will be, and has been for purposes of the pro forma information, accounted for under the purchase method of accounting in accordance with Statement of Financial Accounting Standards No. 141, Business Combinations.
The proforma presents two scenarios, (Scenario I) Kimco acquires all of the outstanding shares of Pan Pacific for $60.00 cash per share and issues $10.00 per share of the total merger consideration in the form of Kimco Common Stock and (Scenario II) Kimco acquires all of the outstanding shares of Pan Pacific for $70.00 per share in cash.
The total purchase price is increased by intangible liabilities for the value attributable to the assumed mortgage debt premiums, senior note premiums and below market leases. The purchase price is determined as follows (in thousands, except per share data):
Scenario I | Scenario II | |||||
Outstanding Shares of Pan Pacific Stock (including 305 shares reflecting the assumed conversion of certain partnership units prior to the merger) |
41,080 | 41,080 | ||||
Cash consideration ($60 and $70 per share, respectively) |
$ | 2,464,800 | $ | 2,875,600 | ||
Common stock consideration ($10 and $0 per share, respectively) |
410,800 | | ||||
Estimated merger costs (see below) |
56,364 | 56,364 | ||||
Total consideration |
2,931,964 | 2,931,964 | ||||
Assumption of Pan Pacifics liabilities, including debt premiums |
1,174,851 | 1,174,851 | ||||
Total purchase price |
$ | 4,106,815 | $ | 4,106,815 | ||
Total merger costs are estimated as follows:
Legal, accounting, and other fees and costs |
$ | 24,100 | |
Real Estate transfer taxes |
10,751 | ||
Debt assumption fees resulting from the merger |
2,826 | ||
Termination, severance, change in control and other employee related costs |
18,687 | ||
Total merger costs |
$ | 56,364 | |
It is important to remember that this information is hypothetical, and does not necessarily reflect the financial performance that would have actually resulted if the merger had been completed on those dates. Furthermore, this information does not necessarily reflect future financial performance if the merger actually occurs.
16
See Kimco Realty Corporation Unaudited Pro Forma Condensed Consolidated Financial Statements attached to this proxy statement/prospectus for a more detailed explanation of this analysis.
Kimco Pro Forma Six Months Ended June 30, 2006 |
Kimco Pro Forma Twelve Months Ended December 31, 2005 | |||||||||||
Scenario I | Scenario II | Scenario I | Scenario II | |||||||||
(In thousands, except per share data) | ||||||||||||
Statement of Income: |
||||||||||||
Revenue |
$ | 460,462 | $ | 460,462 | $ | 838,512 | $ | 838,512 | ||||
Income from continuing operations available to common shareholders |
$ | 158,564 | $ | 147,116 | $ | 321,842 | $ | 304,004 | ||||
Income from continuing operations available to common shareholders per sharebasic |
$ | 0.64 | $ | 0.63 | $ | 1.35 | $ | 1.34 | ||||
Income from continuing operations available to common shareholders per sharediluted |
$ | 0.63 | $ | 0.61 | $ | 1.33 | $ | 1.32 | ||||
Balance Sheet Data (At End of Period): |
||||||||||||
Real estate properties, net |
$ | 8,196,333 | $ | 8,196,333 | ||||||||
Investment and advances in real estate joint ventures |
$ | 819,294 | $ | 819,294 | ||||||||
Accounts and notes receivable |
$ | 77,125 | $ | 77,125 | ||||||||
Total assets |
$ | 11,133,564 | $ | 11,133,564 | ||||||||
Notes payable |
$ | 5,681,885 | $ | 6,092,685 | ||||||||
Mortgages payable |
$ | 799,473 | $ | 799,473 | ||||||||
Construction loans payable |
$ | 261,706 | $ | 261,706 | ||||||||
Minority interests |
$ | 308,799 | $ | 308,799 | ||||||||
Total equity |
$ | 3,304,080 | $ | 2,893,280 |
Set forth below are income from continuing operations available to common shareholders, book value and cash dividends per share data for Kimco and Pan Pacific on a historical basis and for Kimco on a pro forma basis.
The pro forma data was derived by combining the historical consolidated financial information of Kimco and Pan Pacific using purchase accounting.
17
You should read the information below together with the historical financial statements and related notes contained in the annual reports and other information that Kimco and Pan Pacific have filed with the SEC and incorporated by reference. See Where You Can Find More Information. The unaudited pro forma combined data below is for illustrative purposes only. The companies might have performed differently had they always been combined. You should not rely on this information as being indicative of the historical results that would have been achieved had the companies always been combined or the future results that the combined company will experience after the merger.
Kimco Historical Data |
Pan Pacific Historical Data |
Kimco Pro Forma Combined Data | ||||||||||
Scenario I | Scenario II | |||||||||||
Income per share from continuing operations available to common shareholdersbasic |
||||||||||||
Year ended December 31, 2005 |
$ | 1.42 | $ | 2.40 | $ | 1.35 | $ | 1.34 | ||||
Six months ended June 30, 2006 |
$ | 0.72 | $ | 1.20 | $ | 0.64 | $ | 0.63 | ||||
Income per share from continuing operations available to common shareholdersdilutive |
||||||||||||
Year ended December 31, 2005 |
$ | 1.39 | $ | 2.38 | $ | 1.33 | $ | 1.32 | ||||
Six months ended June 30, 2006 |
$ | 0.71 | $ | 1.20 | $ | 0.63 | $ | 0.61 | ||||
Book value per share of common stock |
||||||||||||
As of December 31, 2005 |
$ | 10.46 | $ | 23.05 | N/A | N/A | ||||||
As of June 30, 2006 |
$ | 12.02 | $ | 23.03 | $ | 13.73 | $ | 13.73 | ||||
Cash dividends per share of common stock |
||||||||||||
Year ended December 31, 2005 |
$ | 1.27 | $ | 2.36 | $ | 1.27 | $ | 1.27 | ||||
Six months ended June 30, 2006 |
$ | 0.66 | $ | 1.28 | $ | 0.66 | $ | 0.66 |
Comparative Per Share Market Price And Dividend Information
At the close of business on August 18, 2006, the record date for the special meeting, there were approximately 2,754 holders of record of Kimco common stock and 1,172 holders of record of Pan Pacific common stock.
Kimco common stock is listed on the New York Stock Exchange under the symbol KIM. Pan Pacific common stock is listed on the New York Stock Exchange under the symbol PNP.
18
The following table sets forth the high and low closing prices per share of Kimco common stock and Pan Pacific common stock as reported by the New York Stock Exchange, based on published financial sources for the quarterly periods indicated, which correspond to the quarterly fiscal periods for financial reporting purposes.
Kimco Common Stock |
Pan Pacific Common Stock | ||||||||||||||||||
High | Low | Declared Dividend |
High | Low | Declared Dividend | ||||||||||||||
2004: |
|||||||||||||||||||
First Quarter |
$ | 25.66 | $ | 21.88 | $ | 0.285 | $ | 52.60 | $ | 47.85 | $ | 0.5425 | |||||||
Second Quarter |
$ | 25.60 | $ | 19.77 | $ | 0.285 | $ | 53.16 | $ | 41.80 | $ | 0.5425 | |||||||
Third Quarter |
$ | 25.90 | $ | 22.42 | $ | 0.285 | $ | 54.46 | $ | 48.88 | $ | 0.5425 | |||||||
Fourth Quarter |
$ | 29.64 | $ | 25.27 | $ | 0.305 | (a) | $ | 62.70 | $ | 54.81 | $ | 0.5425 | ||||||
2005: |
|||||||||||||||||||
First Quarter |
$ | 29.09 | $ | 25.90 | $ | 0.305 | $ | 61.93 | $ | 56.25 | $ | 0.5900 | |||||||
Second Quarter |
$ | 30.00 | $ | 26.17 | $ | 0.305 | $ | 68.00 | $ | 56.10 | $ | 0.5900 | |||||||
Third Quarter |
$ | 33.35 | $ | 29.19 | $ | 0.330 | $ | 70.49 | $ | 64.15 | $ | 0.5900 | |||||||
Fourth Quarter |
$ | 33.21 | $ | 27.81 | $ | 0.330 | (b) | $ | 68.30 | $ | 60.25 | $ | 0.5900 | ||||||
2006: |
|||||||||||||||||||
First Quarter |
$ | 41.40 | $ | 32.73 | $ | 0.330 | $ | 73.45 | $ | 66.77 | $ | 0.6400 | |||||||
Second Quarter |
$ | 39.50 | $ | 34.85 | $ | 0.330 | $ | 69.37 | $ | 63.77 | $ | 0.6400 | |||||||
As of August 18, 2006 |
$ | 40.29 | $ | 36.54 | N/A | $ | 70.38 | $ | 68.86 | N/A |
(a) | Paid on January 18, 2005 to stockholders of record on January 3, 2005. |
(b) | Paid on January 17, 2006 to stockholders of record on January 3, 2006. |
Pan Pacific has agreed that, if requested by Kimco, it will enter into one or more asset sales. The closing of the asset sales would occur immediately prior to the effective time of the merger. If there are one or more asset sales, Pan Pacific will declare and pay a dividend to holders of Pan Pacific common stock in an amount equal to the net proceeds of such asset sales, and the cash consideration portion of the merger consideration will be reduced by the amount of such dividend.
The following table presents trading information for Kimco common stock and Pan Pacific common stock for July 7, 2006 and August 18, 2006. July 7, 2006 was the last full trading day prior to the public announcement of the proposed merger. August 18, 2006 was the last practicable trading day for which information was available prior to the date of the first mailing of this proxy statement/prospectus. The Pan Pacific pro forma equivalent closing share price is equal to $70.00, the fixed value of the merger consideration.
Kimco Close |
Pan Pacific Common Stock Close |
Pan Pacific Pro Close | |||||||
July 7, 2006 |
$ | 36.87 | $ | 70.00 | $ | 70.00 | |||
August 18, 2006 |
$ | 40.29 | $ | 69.28 | $ | 70.00 |
The market prices of Kimco common stock and Pan Pacific common stock fluctuate. As a result, we urge you to obtain current market quotations of Kimco common stock and Pan Pacific common stock.
19
In addition to general investment risks and the other information contained in or incorporated by reference into this proxy statement/prospectus, you should carefully consider the following factors in evaluating the proposals to be voted on at the special meeting.
Risk Factors Relating to the Merger
Stockholders will not know until the closing of the merger the number of shares of Kimco common stock, if any, that will be issued in the merger.
In connection with the merger, you will be entitled to receive $70 in cash in respect of each share of Pan Pacific common stock that you own immediately prior to the merger; however, Kimco may elect to issue up to $10 per share of the merger consideration in the form of Kimco common stock. Kimco has the right to make this stock election at any time prior to the date which is 15 days prior to the date of the Pan Pacific stockholder meeting. Kimco may revoke the stock election at any time so long as such revocation would not delay the Pan Pacific stockholders meeting by more than 10 business days. If Kimco makes the stock election, the number of shares of Kimco common stock that the Pan Pacific stockholders will receive will be determined based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the trading day which is two days prior to the Pan Pacific stockholders meeting or, if Kimco has elected to delay the closing, based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the closing date. This market price may vary from the closing price of Kimco common stock on the date the merger was announced, on the date that this proxy statement/prospectus was mailed to Pan Pacific stockholders and on the date of the Pan Pacific special meeting. Accordingly, in the event that Kimco exercises the option to deliver part of the merger consideration in the form of its common stock, the exact number of shares of Kimco common stock that you will be entitled to receive for each of your Pan Pacific shares will not be known until immediately prior to either the Pan Pacific stockholder meeting or, if Kimco elects to delay the closing, the date of the closing of the merger.
Neither Kimco nor Pan Pacific is permitted to terminate the merger agreement or resolicit the vote of Pan Pacific stockholders solely because of changes in the market prices of either companys stock. Stock price changes may result from a variety of factors, including general market and economic conditions, changes in the respective businesses, operations and prospects of Pan Pacific and Kimco. Many of these factors are beyond the control of Pan Pacific or Kimco.
There may be unexpected delays in the consummation of the merger, which would delay Pan Pacific stockholders receipt of the merger consideration and could impact Kimcos ability to timely achieve cost savings associated with the merger.
The merger is expected to close during the fourth quarter of 2006. However, certain events may delay the consummation of the merger. If these events were to occur, the receipt of cash and potentially shares of Kimco common stock by Pan Pacific stockholders would be delayed. Some of the events that could delay the consummation of the merger include difficulties in obtaining the approval of Pan Pacific stockholders or satisfying the closing conditions to which the merger is subject. In addition, Kimco has the right under the merger agreement to delay the closing by up to 45 days.
If the merger does not occur, Pan Pacific may incur payment obligations to Kimco and Pan Pacifics stock price may decline.
If the merger agreement is terminated under certain circumstances, Pan Pacific may be required to pay Kimco a $65.0 million break-up fee. If the merger agreement is terminated in certain other circumstances, Pan Pacific may be obligated to pay Kimco up to $11.0 million as an expense reimbursement. See The Merger AgreementTermination; Break-up Fees and Expenses.
20
The merger is subject to customary conditions to closing, including the receipt of required approval of the stockholders of Pan Pacific. If any condition to the merger is not satisfied or, if permissible, waived, the merger will not be completed. In addition, Pan Pacific and Kimco may terminate the merger agreement in certain circumstances. If Pan Pacific and Kimco do not complete the merger, the market price of Pan Pacific common stock may fluctuate to the extent that the current market prices of those shares reflect a market assumption that the merger will be completed. Pan Pacific has diverted significant management resources in an effort to complete the merger and is subject to restrictions contained in the merger agreement on the conduct of its business. If the merger is not completed, Pan Pacific will have incurred significant costs, including the diversion of management resources, for which it will have received little or no benefit.
Certain of Pan Pacifics directors and executive officers may have interests in the merger that are different from, or in addition to, the interests of Pan Pacific stockholders generally.
In considering the recommendation of Pan Pacifics board of directors with respect to the merger, Pan Pacific stockholders should be aware that certain of Pan Pacifics directors and executive officers may have interests in the merger that are different from, or in addition to, the interests of Pan Pacific stockholders generally. See Interests of Certain Directors and Executive Officers of Pan Pacific in the Merger. These interests include the following:
| Kimco will provide indemnification for the present and former directors and officers of Pan Pacific against all costs or expenses incurred in connection with any existing claim or any claim occurring at or prior to the Merger to the fullest extent permitted under applicable law. |
| For six years after the effective time of the Merger, Kimco will continue Pan Pacifics current directors and officers liability insurance for the benefit of Pan Pacifics present and former directors and officers, provided that Kimco is not required to spend more than 200% of the aggregate of Pan Pacifics current premiums to obtain such insurance. |
| In connection with the merger, all options to purchase shares of Pan Pacific common stock will be canceled and the holder thereof will be compensated in cash for all outstanding, unexercised options in an amount equal to the product of the excess of $70 over the per share exercise price of the option and the number of shares of Pan Pacific common stock underlying the unexercised portion of the option. |
| 163,287 unvested shares of Pan Pacific restricted stock previously awarded to three Pan Pacific executive officers will vest immediately prior to the effective time of the merger and will be exchanged for the merger consideration in connection with the merger. Using a $70 pro forma equivalent value for Pan Pacific common stock, the aggregate value of the unvested Pan Pacific restricted stock previously awarded to Pan Pacific directors and executive officers is approximately $11.4 million. |
| Under their respective employment agreements, three executive officers of Pan Pacific would be entitled to receive estimated cash payments of approximately $7.0 million in the aggregate upon qualifying terminations of employment. |
Risk Factors Relating to Kimco Following the Merger
Real property investments are subject to varying degrees of risk that may adversely affect the business and the operating results of Kimco after the merger.
The combined companys revenue and the value of its properties may be adversely affected by a number of factors, including:
| the national economic climate; |
| the local economic climate; |
| local real estate conditions; |
| changes in retail expenditures by consumers; |
| the perceptions of prospective tenants of the attractiveness of the properties; |
21
| the combined companys ability to manage and maintain its properties and secure adequate insurance; and |
| increases in operating costs (including real estate taxes and utilities). |
In addition, real estate values and income from properties are also affected by factors such as applicable laws, including tax laws, interest rate levels and the availability of financing. If the combined companys properties do not generate revenue sufficient to meet operating expenses, including debt service, tenant improvements, leasing commissions and other capital expenditures, it may have to borrow additional amounts to cover its expenses. This would harm the combined companys cash flow and ability to make distributions to its stockholders.
The market price of Kimco common stock after the merger may be affected by factors different from those affecting the shares of Pan Pacific currently.
The businesses of Kimco and Pan Pacific are different and, accordingly, the results of operations of Kimco and the market price of Kimcos common stock may be affected by factors different from those currently affecting the results of operations and market prices of Pan Pacifics common stock. For a discussion of the businesses of Kimco and Pan Pacific and of certain factors to consider in connection with those businesses, see the documents incorporated by reference in this proxy statement/prospectus and referred to under Where You Can Find More Information.
Kimco would incur adverse tax consequences if it or Pan Pacific failed to qualify as a real estate investment trust for United States federal income tax purposes.
Kimco may elect to issue its stock to Pan Pacific stockholders as a portion of the merger consideration. Kimco has assumed based on public filings that Pan Pacific has qualified and, should it be the surviving entity of the merger, will continue to qualify as a real estate investment trust (REIT), under the Internal Revenue Code of 1986, as amended (Code), following the merger. However, if Pan Pacific has failed or fails to qualify as a REIT, Kimco generally would succeed to or incur significant tax liabilities.
Kimco has been organized as, and believes that its past and present operations qualify it as, a REIT. In addition, following the merger, Kimco intends to operate in a manner that will allow it to continue to qualify as a REIT. However, the Internal Revenue Service, or the IRS, could successfully assert that Kimco was not or will not continue to be qualified as a REIT. That is because qualification as a REIT involves the application of highly technical and complex Code provisions for which there are only limited judicial or administrative interpretations and involves the determination of various factual matters and circumstances not entirely within Kimcos control. If Kimco fails to qualify as a REIT, it will not be allowed a deduction for dividends paid to stockholders in computing taxable income and would become subject to federal income tax at regular corporate tax rates. In such an event, it could be subject to potentially significant tax liabilities. Unless entitled to relief under certain statutory provisions, Kimco would also be disqualified from treatment as a REIT for the four taxable years following the year in which it lost its qualification. If this were to occur, the market price of Kimco stock may decline and Kimco may reduce the amount of its distributions to stockholders to pay the resulting taxes.
Some of Pan Pacifics facilities will be subject to property tax reappraisal.
As a result of the merger, some of Pan Pacifics facilities will be subject to property tax reappraisal that could increase property tax expense. A portion of Pan Pacifics domestic facilities are located in jurisdictions that may provide for property tax reappraisal upon a change of ownership and so may face such a reassessment. The merger and the associated publicity together with the possible related transfers of property and property name changes that may occur in connection with the merger may cause other jurisdictions, in which the timing of the reappraisals is discretionary with the taxing authorities, to decide to reappraise Pan Pacifics properties in those jurisdictions and may correspondingly increase the property tax expense to the surviving entity of the merger. Due to the significant uncertainties involved, the possible increases in property tax expense have not been quantified.
22
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This proxy statement/prospectus, including information included or incorporated by reference in this proxy statement/prospectus, may contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, statements about the benefits of the merger, including future financial and operating results and performance; statements about Kimcos and Pan Pacifics plans, objectives, expectations and intentions with respect to future operations, products and services; and other statements identified by words such as expects, anticipates, intends, plans, believes, seeks, estimates, should, may or words of similar meaning. These forward-looking statements are based upon the current beliefs and expectations of Kimcos and Pan Pacifics management and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are difficult to predict and generally beyond the control of Kimco and Pan Pacific. In addition, these forward-looking statements are subject to assumptions with respect to future business strategies and decisions that are subject to change. Actual results may differ materially from the anticipated results discussed in these forward-looking statements.
The following factors, among others, could cause actual results to differ materially from the anticipated results or other expectations expressed in the forward-looking statements:
| those discussed and identified in public filings with the Securities and Exchange Commission made by Kimco and Pan Pacific; |
| the vote of Pan Pacific on the merger at the Pan Pacific special meeting; |
| the timing of the completion of the merger; |
| the amount of expenses and other liabilities incurred or accrued between the date of the signing of the merger agreement and date of the closing of the merger; and |
| Pan Pacific and Kimco each being able to maintain its qualification as a REIT. |
You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this proxy statement/prospectus or the date of any document incorporated by reference in this proxy statement/prospectus. All subsequent written and oral forward-looking statements concerning the merger or other matters addressed in this proxy statement/prospectus and attributable to Kimco or Pan Pacific or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except to the extent required by applicable law or regulation, Kimco and Pan Pacific undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date of this proxy statement/prospectus or to reflect the occurrence of unanticipated events.
23
THE PAN PACIFIC SPECIAL MEETING
There will be a special meeting of the stockholders of Pan Pacific on September 25, 2006, at 9:00 a.m., Pacific Time, at the Marriott San Diego Del Mar, 11966 El Camino Real, San Diego, CA 92130.
At the special meeting, holders of Pan Pacific common stock will be asked to consider a proposal to approve the transactions contemplated by the Agreement and Plan of Merger, dated as of July 9, 2006, including the merger pursuant to which Pan Pacific will be merged with a subsidiary of Kimco. At the Pan Pacific special meeting, Pan Pacific stockholders will also be asked to approve the adjournment of the special meeting, if necessary, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the merger, and to approve an adjournment of the special meeting, if necessary, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the merger.
Recommendation of Pan Pacifics Board of Directors
With regard to the merger, Pan Pacifics board has unanimously determined it to be advisable and fair to and in the best interests of Pan Pacific and its stockholders, authorized and approved it and recommended that Pan Pacific stockholders approve it. See The MergerBackground of the Merger and The MergerRecommendation of Pan Pacifics Board of Directors, and Interests of Directors and Executive Officers of Pan Pacific in the Merger.
Record Date, Outstanding Shares and Voting Rights
Pan Pacifics board has fixed August 18, 2006, as the record date for the special meeting. Accordingly, only holders of record of issued and outstanding shares of Pan Pacific common stock at the close of business on the record date are entitled to vote at the special meeting. At the close of business on the record date, there were 40,774,388 shares of Pan Pacific common stock outstanding, held by approximately 1,172 holders of record. Each holder is entitled to one vote for each share of Pan Pacific common stock held on the record date.
Approval of the Pan Pacific merger proposal requires the affirmative vote of the holders of at least a majority of Pan Pacifics common stock outstanding as of the record date. Approval of the merger will also constitute approval of the amendment to the Pan Pacific charter, which is contemplated by the merger agreement.
The representation, in person or by properly executed proxy, of the holders of a majority of the shares of Pan Pacific common stock entitled to vote at the Pan Pacific special meeting is necessary to constitute a quorum at the Pan Pacific special meeting. Shares of Pan Pacific common stock represented in person or by proxy will be counted for the purposes of determining whether a quorum is present at the Pan Pacific special meeting. Abstentions will be counted for quorum purposes and will have the same effect as votes against approval of the Pan Pacific merger proposal (and the related charter amendment) since the merger proposal requires the affirmative vote of a majority of outstanding shares of Pan Pacific common stock. If a broker or nominee holding shares of record for a customer submits a properly executed proxy, but indicates that it does not have discretionary authority to vote as to a particular matter, those shares, which are referred to as broker non-votes, will be treated as present and entitled to vote at the Pan Pacific special meeting for purposes of determining whether a quorum exists.
Under New York Stock Exchange rules, brokers and nominees holding shares of record for customers are not entitled to vote on the Pan Pacific merger proposal unless they receive specific voting instructions from the
24
beneficial owner of the shares. Accordingly, broker non-votes will have the same effect as shares voted against approval of the Pan Pacific merger proposal.
If a quorum is not present, the stockholders entitled to vote at the special meeting, present in person or by proxy, may adjourn the meeting from time to time to a date not more than 120 days after the original record date without notice other than an announcement at the meeting. Any business may be transacted at an adjourned meeting which might have been transacted at the special meeting as originally called.
All shares of Pan Pacific common stock that are entitled to vote and are represented at the Pan Pacific special meeting by properly executed proxies received prior to or at such meeting, and not revoked, will be voted at such meeting in accordance with the instructions indicated on such proxies. Pan Pacific stockholders may choose to vote for or against or abstain from voting on the approval of the merger. If a Pan Pacific stockholder returns a signed proxy card, but does not indicate how the shares are to be voted (with the exception of broker non-votes), the shares of Pan Pacific common stock represented by the proxy card will be voted FOR the merger. If a Pan Pacific stockholder does not return a signed proxy card, that stockholders shares will not be voted and will have the same effect as a vote against the approval of the merger.
If a motion is made to adjourn the special meeting to another time or place for the purposes of soliciting additional proxies, the persons named in the enclosed form of proxy and acting thereunder generally will have discretion to vote on such matters in accordance with their discretion, except that any shares which were voted against the Pan Pacific merger proposal will not be voted in favor of the adjournment or postponement of the Pan Pacific special meeting in order to solicit additional proxies.
Authorizing Your Proxy by Telephone. Stockholders of record and many stockholders who hold their shares through a broker or bank will have the option to authorize their proxies by telephone. Please note that there are separate arrangements for using the telephone depending on whether your shares are registered in Pan Pacifics stock records in your name or in the name of a broker, bank or other nominee who holds your shares. If you hold your shares through a broker, bank or other nominee, you should check your proxy card or voting instruction card forwarded by your broker, bank or other nominee who holds your shares to see which options are available.
In addition to submitting the enclosed proxy by mail, Pan Pacific stockholders of record may authorize their proxies by telephone by following the instructions on their proxy card or voting form. If you have any questions regarding whether you are eligible to authorize your proxy by telephone, you shall contact MacKenzie Partners, Inc. by telephone at 1-800-322-2885 (toll free) or by email at proxy@mackenziepartners.com.
Under Section 3-202 of the Maryland General Corporation Law, Pan Pacific stockholders do not have the right to receive the appraised value of their shares in connection with merger because Pan Pacific common stock is listed on the New York Stock Exchange. If Pan Pacific stockholders do not vote in favor of the merger and the merger occurs anyway, Pan Pacific stockholders will be bound by the terms of the merger under the merger agreement, and each of their shares of Pan Pacific common stock will be converted into the right to receive $70 cash. Kimco may elect to issue up to $10 per share of the merger consideration in the form of Kimco common stock.
25
A proxy card is enclosed. Any stockholder who executes and delivers the proxy card may revoke the authority granted under the proxy at any time before the shares are voted by:
| delivering to the Secretary of Pan Pacific, at or before the vote is taken at the Pan Pacific special meeting, a later-dated written notice stating that you would like to revoke your proxy and change your vote; |
| properly executing a new proxy card bearing a later date relating to the same shares and delivering it in time to the Secretary of Pan Pacific so that the new proxy card is received before the shares are voted; or |
| attending the Pan Pacific special meeting and voting in person, although attendance at the Pan Pacific special meeting will not in and of itself constitute a revocation of a proxy or a change of your vote. |
If you have instructed your broker to vote your shares and you wish to revoke those instructions, you must follow your brokers revocation procedures.
Any written notice of revocation or subsequent proxy should be sent to Pan Pacific Retail Properties, Inc., 1631-B South Melrose Drive, Vista, California, 92081, Attention: Secretary, so as to be received prior to the Pan Pacific special meeting, or hand delivered to the Corporate Secretary of Pan Pacific at or before the taking of the vote at the Pan Pacific special meeting. Stockholders that have instructed a broker to vote their shares must follow directions received from such broker in order to change their vote or to vote at the Pan Pacific special meeting.
Solicitation of Proxies; Expenses
All expenses of Pan Pacifics solicitation of proxies, including the cost of mailing this proxy statement/prospectus to Pan Pacific stockholders, will be paid by Pan Pacific. In addition to solicitation by use of the mail, Pan Pacifics stockholders, directors, officers and employees may solicit proxies by telephone, e-mail, fax or other means of communication. Such stockholders, directors, officers and employees will not be additionally compensated, but may be reimbursed for reasonable out-of-pocket expenses in connection with such solicitation. Arrangements will also be made with brokerage houses, custodians, nominees and fiduciaries for forwarding of proxy solicitation materials to beneficial owners of shares held of record by such brokerage houses, custodians, nominees and fiduciaries, and Pan Pacific will reimburse such brokerage houses, custodians, nominees and fiduciaries for their reasonable expenses incurred in forwarding such materials. Pan Pacific has retained MacKenzie Partners, Inc., a proxy soliciting firm, to assist Pan Pacific in the solicitation of proxies. MacKenzies solicitation fee is $12,500, plus reasonable expenses.
PAN PACIFIC STOCKHOLDERS SHOULD NOT SEND IN THEIR STOCK CERTIFICATES WITH THE PROXY CARDS. YOU WILL RECEIVE SEPARATE WRITTEN INSTRUCTIONS ON HOW TO EXCHANGE YOUR PAN PACIFIC STOCK CERTIFICATES FOR THE MERGER CONSIDERATION IF THE MERGER IS COMPLETED.
26
Kimco began operations through a predecessor in 1966, and today is one of the nations largest publicly-traded owners and operators of neighborhood and community shopping centers (measured by gross leasable area, which we refer to as GLA). Kimco owns interests in 1,118 properties. These properties have a total of approximately 143.6 million square feet of GLA and are located in 45 states and in Canada, Mexico and Puerto Rico.
Kimcos ownership interests in real estate consist of its consolidated portfolio and in portfolios in which it owns an economic interest, such as; Kimco Income REIT, the RioCan Venture, Kimco Retail Opportunity Portfolio and other properties or portfolios where it also retains management.
Kimco believes that it has operated, and it intends to continue to operate, in such a manner to qualify as a REIT under the Code. Kimco is self-administered and self-managed through present management, which has owned and managed neighborhood and community shopping centers for more than 35 years. Kimco has not engaged, nor does it expect to retain, any external advisors in connection with the operation of its properties. Kimcos executive officers are engaged in the day-to-day management and operation of its real estate exclusively, and Kimco administers nearly all operating functions for its properties, including leasing, legal, construction, data processing, maintenance, finance and accounting. Kimcos executive offices are located at 3333 New Hyde Park Road, New Hyde Park, New York 11042-0020 and its telephone number is (516) 869-9000. For additional information on Kimco, see Where You Can Find More Information.
Following the merger, Kimco is expected to continue to be managed by its existing board of directors and by its existing senior management team.
KRC Acquisition Inc., a Maryland corporation, is a newly formed, wholly-owned subsidiary of Kimco that was formed solely for the purpose of effecting the merger. KRC Acquisition Inc. has not conducted and will not conduct any business prior to the merger.
Pan Pacific is a self-administered and self-managed equity real estate investment trust that owns and operates community and neighborhood shopping centers, predominately grocery-anchored, located in the western United States. Pan Pacific completed its initial public offering in August 1997 and its shares are traded on the New York Stock Exchange under the symbol PNP. As of June 30, 2006, Pan Pacifics portfolio totaled 138 shopping center properties, encompassing approximately 22.6 million square feet, diversified across Northern California, Southern California, the Pacific Northwest and Nevada.
27
The merger agreement provides that either KRC Acquisition Inc., a subsidiary of Kimco, will be merged with and into Pan Pacific with Pan Pacific surviving as a subsidiary of Kimco or that Pan Pacific will merge with and into KRC Acquisition Inc. with KRC Acquisition Inc. surviving as a subsidiary of Kimco.
In connection with the merger, you will be entitled to receive $70 in cash in respect of each share of Pan Pacific common stock that you own immediately before the completion of the merger. However, Kimco may elect to issue up to $10 per share of the merger consideration in the form of Kimco common stock. If Kimco makes the stock election, the number of shares of Kimco common stock that the Pan Pacific stockholders will receive will be determined based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the trading day which is two days prior to the Pan Pacific stockholders meeting or, if Kimco has elected to delay the closing, based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the closing date. If Kimco makes the stock election, cash (without interest) will be paid to Pan Pacific stockholders instead of fractional shares of Kimco common stock. Pan Pacific has agreed that, if requested by Kimco, it will enter into one or more asset sales. The closing of the asset sales would occur immediately prior to the effective time of the merger. If there are one or more asset sales, Pan Pacific will declare and pay a dividend to holders of Pan Pacific common stock in an amount equal to the net proceeds of such asset sales, and the cash consideration portion of the merger consideration will be reduced by the amount of such dividend.
In connection with the merger, all outstanding Pan Pacific stock options will be accelerated and fully vested. Each then-outstanding Pan Pacific stock option will be cancelled and the holder of the option will be entitled to receive cash in an amount equal to the product obtained by multiplying the excess of $70 over the per share exercise price of the option by the number of shares of Pan Pacific common stock underlying the unexercised portion of the option. Immediately prior to the effective time of the merger, the vesting of each restricted share of Pan Pacific common stock granted under any Pan Pacific stock plan will be fully accelerated and the contractual restrictions on such shares will terminate.
This proxy statement/prospectus constitutes a prospectus of Kimco, which is a part of the registration statement on Form S-4 filed by Kimco with the SEC under the Securities Act of 1933 in order to register the shares of Kimco common stock to be issued to Pan Pacific stockholders in the merger and a proxy statement of Pan Pacific in connection with the solicitation of the approval by Pan Pacific stockholders of the merger.
Pan Pacifics board and management have from time to time evaluated and considered a variety of strategic alternatives as a part of Pan Pacifics long-term strategy to maximize stockholder value.
On October 29, 2003, Pan Pacifics board held a regular meeting, at which Pan Pacifics management presented its proposed business plan to Pan Pacifics board and discussed various business and strategic alternatives. In addition, Pan Pacifics board met with representatives of an investment banking firm and discussed possible business and strategic alternatives as part of Pan Pacifics continuing effort to maximize stockholder value. Among the alternatives discussed were: expanding Pan Pacifics geographic focus beyond its current five key markets, expanding the property type in which Pan Pacific invested (for example, to include regional malls as well as strip centers), pursuing joint ventures to acquire properties, initiating a strip center development capability, seeking an acquisition of another REIT, pursuing an orderly liquidation of Pan Pacific and exploring a sale of Pan Pacific. The Pan Pacific board evaluated the various risks, benefits and reasonably anticipated costs of each of the strategic alternatives. After an extended discussion, Pan Pacifics board directed Pan Pacifics management and the investment banking firm to conduct further work to evaluate these alternatives.
28
On November 20, 2003, at a special meeting of Pan Pacifics board, Pan Pacifics management and the investment banking firm updated Pan Pacifics board regarding the evaluation of the alternatives and their recommendations. The board also evaluated the potential deleterious impact on Pan Pacifics business and employees if the fact that Pan Pacific was exploring strategic options became widely known and, accordingly, determined that the number of companies contacted should be limited to those most likely to be interested and able to complete a transaction. Based on the foregoing and the information discussed at the October 29, 2003 board meeting, and after an extended discussion, the Pan Pacific board concluded that pursuing a strategic business combination could well be an attractive course. With Pan Pacific managements endorsement, Pan Pacifics board directed the investment banking firm to solicit expressions of interest regarding a possible business combination transaction with three selected transaction candidates, including Kimco. Each of these candidates was selected based on the Pan Pacific boards evaluation of the likelihood of their interest, their ability to complete a transaction, the quality of their management and operations (should common stock be the form of acquisition consideration), and their access to capital.
Following Pan Pacifics November 2003 board meeting, the investment banking firm and Pan Pacifics management entered into a formal offering process. Initially, the investment banking firm contacted the three specified potential transaction candidates to explore their interest in a possible business combination transaction with Pan Pacific. Based on the investment banking firms preliminary solicitation, two companies executed confidentiality agreements with Pan Pacific. Kimco declined to participate citing a lack of interest in pursuing an auction process with respect to Pan Pacific. Throughout the offering process, Pan Pacifics management kept Pan Pacifics board informed of discussions they held regarding a possible business combination with Pan Pacific.
The two remaining companies engaged in due diligence which consisted of an in-depth evaluation of Pan Pacifics properties, assets and liabilities, including meetings with Pan Pacifics management, access to a data room and tours of the properties, as requested. Upon completion of the due diligence process, however, both companies advised Pan Pacific that they were not prepared to submit a proposal given the then trading price of Pan Pacific common stock.
At a Pan Pacific special board meeting on January 12, 2004, the investment banking firm informed Pan Pacifics board of the status of the process. Pan Pacifics board decided that, at that time, it was in the best interests of Pan Pacific and its stockholders for Pan Pacifics management to focus its time and efforts on executing its business plan and formally resolved that Pan Pacific and its representatives cease pursuing discussions regarding strategic alternatives. Following the January board meeting, Pan Pacifics management continued to conduct its operations in accordance with its business plan.
Going forward, the Pan Pacific board, at its regularly scheduled meetings, reviewed Pan Pacifics business plan, evaluated the acquisition market and the increasing prices for and declining capitalization rates associated with the types of properties it was interested in acquiring. During this time, Pan Pacific did not receive any offers, indications of interest or approaches from a party interested in acquiring Pan Pacifics business.
On May 18, 2006, the Pan Pacific board held a special meeting at which the strategic alternatives for Pan Pacific were once again evaluated. It was noted that the mix of risks, benefits and likely costs for each strategic alternative had not changed meaningfully since the boards last review. Based on this analysis and given Pan Pacifics high stock price, its extremely strong funds from operation multiple and low dividend yield, the relative lack of attractive property acquisition candidates in Pan Pacifics five key markets (which limited its ability to grow), and the relatively high stock prices for REITs in general, the Pan Pacific board concluded, with Pan Pacific managements endorsement, that the time was right to explore strategic alternatives regarding Pan Pacific. The Pan Pacific board also considered the desirability of receiving cash versus stock and which likely acquirors would be able to pay a substantial portion of any transaction price in cash for Pan Pacific. Based on its analysis of these factors, the Pan Pacific board concluded that Kimco was the most attractive potential acquiror based on its size, access to capital, likely expectations as to capitalization rate on a portfolio like Pan Pacifics and its ability to finance any potential transaction through its joint venture relationships. Pan Pacifics board then instructed Pan Pacifics management and lead independent director, Joseph P. Colmery, to contact Kimcos management.
29
On June 5, 2006, Stuart A. Tanz, Pan Pacifics Chairman, Chief Executive Officer, and President, and Joseph B. Tyson, Pan Pacifics Chief Financial Officer and Executive Vice President and Mr. Colmery met with Milton Cooper and Jeff Olson of Kimco to discuss the merits of a possible business combination with Pan Pacific. At this meeting, Pan Pacific discussed a possible merger transaction involving Kimco. Pan Pacific also noted that the proposed consideration in the merger was expected to be primarily paid in cash and securities valued on a fixed basis. Following the meeting, Mr. Olson called Mr. Tanz on June 7, 2006 to indicate that Kimco was interested in exploring the proposal further and desired to initiate due diligence.
On June 8, 2006, Pan Pacific circulated to Kimco a confidentiality agreement, which the parties negotiated and signed. On June 12, 2006, personnel from Kimco initiated due diligence on Pan Pacific starting with meetings with Messrs. Tanz and Tyson.
On June 19, 2006, Pan Pacific received an outline of principal terms from Kimco pursuant to which Kimco proposed to acquire Pan Pacific for $69 per share and without Pan Pacific receiving any dividends from and after the signing of the merger agreement. The term sheet addressed provisions of a potential merger agreement, including consideration, the treatment of stock options and restricted shares, the general nature of representations and warranties and interim covenants, no solicitation, termination and the conditions under which a break-up fee and expenses would be payable, closing conditions, the definition of material adverse effect and the intended tax treatment of the merger. The term sheet also summarized Kimcos expectations as to the focus and timing of the due diligence process.
On June 20, 2006, the Pan Pacific board held a special meeting at which the Kimco outline of principal terms was discussed. After an extensive discussion, the Pan Pacific board concluded that the price was not high enough and that, while the other terms were also not entirely acceptable (particularly those provisions regarding no solicitation, termination and the conditions under which a break-up fee and expenses would be payable, and closing conditions), the proposal indicated a level of seriousness that made it appropriate to request that Kimco instruct its counsel to prepare and circulate a draft merger agreement. While the draft merger agreement was being prepared, Kimco continued to conduct due diligence on Pan Pacific. In addition, since the Kimco outline of principal terms indicated that a small portion of the acquisition price might be paid in shares of Kimco common stock, Pan Pacific initiated reciprocal due diligence regarding Kimco. The due diligence of Kimco conducted by Pan Pacific and its advisors included documentary review and interviews with management, and was conducted between mid June and early July.
Following the Pan Pacific board meeting, Kimco and Pan Pacific continued to negotiate the price and dividend provisions.
On June 26, 2006, Kimcos counsel circulated to all parties the initial draft of the merger agreement, after which Kimcos and Pan Pacifics respective legal counsel and management negotiated the terms of the definitive merger agreement and continued due diligence.
On June 28, 2006, an industry daily news email letter, published a rumor that Kimco was working on a large public deal in the shopping center REIT sector and offered speculation as to the likely targets. The publication did not identify Pan Pacific as a potential target, but nevertheless Pan Pacifics stock price increased from $65.66 per share (the closing price on June 27) to $67.54 on June 28 and $69.37 on June 30.
On July 9, 2006, Pan Pacifics board held a special meeting with Latham & Watkins LLP, special counsel to Pan Pacific, Venable LLP, special Maryland counsel, and Houlihan, Lokey, Howard and Zukin, an investment banking firm engaged to evaluate the fairness of the transaction from a financial point of view (Houlihan Lokey), to discuss various aspects of the merger, the merger agreement and other related matters. First, Venable LLP reviewed with Pan Pacifics board the directors duties under Maryland law. Then, the directors discussed the course of negotiations with Kimco, the benefits that would be received by the stockholders of Pan Pacific and the limited partners of CT Operating Partnership, L.P. and Western/Pinecreek, L.P. as a result of the merger. Also at
30
this special meeting of Pan Pacifics board, management and counsel reviewed with the directors the terms and conditions of the proposed merger agreement with Kimco. Representatives of Latham & Watkins LLP, special counsel to Pan Pacific, then reviewed with Pan Pacifics board the results of its due diligence investigation of Kimco. Pan Pacifics management then reviewed with Pan Pacifics board the results of its due diligence investigation by Pan Pacific of Kimco. Representatives of Houlihan Lokey delivered a presentation to Pan Pacifics board regarding its analysis of the financial terms of the proposed transaction with Kimco. Houlihan Lokey then delivered its oral opinion to Pan Pacifics board, which was subsequently confirmed by delivery to Pan Pacifics board of a written opinion, dated July 9, 2006, that, as of July 9, 2006, based upon and subject to the assumptions, factors, qualifications and limitations set forth in the written opinion the merger consideration to be received by the holders of Pan Pacifics common stock and holders of OP Units (other than holders of OP Units who elect to remain partners of the respective entities surviving the partnership mergers) in connection with the merger was fair, from a financial point of view, to such holders. After further discussion, Pan Pacifics board concluded that the proposed merger was advisable and fair to, and in the best interests of, Pan Pacific and its stockholders and authorized and unanimously approved the merger agreement and the transactions contemplated thereby, including the merger and the charter amendment, and resolved to recommend that the Pan Pacific stockholders approve and adopt the merger. Pan Pacifics board also reviewed the reasons for the merger, including the benefits that would be received by the limited partners of CT Operating Partnership and Western/Pinecreek as a result of the merger, and unanimously determined that the merger agreement was fair to, and in the best interests of, CT Operating Partnership, Western/Pinecreek and their respective limited partners. See Pan Pacifics Reasons for the Merger.
Shortly after the Pan Pacific board meeting on July 9, 2006, the parties executed the merger agreement. Early in the morning on July 10, 2006, the parties announced the execution of the merger agreement via a joint press release.
Pan Pacifics Reasons for the Merger
In making its determination with respect to the merger, Pan Pacifics board considered a number of factors, including, among others, the following factors:
Value and Form of Merger Consideration
Each share of Pan Pacific common stock that is outstanding at the effective time of the merger will be converted into, and canceled in exchange for, the right to receive cash consideration of $70.00 unless Kimco elects to include up to $10.00 per share in stock consideration in which case each share of Pan Pacific common stock will be converted into at least $60.00 in cash and a number of shares of Kimco common stock equal to up to $10.00 per share, with the aggregate merger consideration being $70.00. The consideration of $70.00 for each share is fixed and will not be adjusted for changes in the price of our common stock prior to the closing date of the merger and represents an implied capitalization rate on Pan Pacifics projected net operating income for the twelve months ending June 30, 2007, which is historically low for an acquisition of a public strip center REIT.
The consideration to be received by Pan Pacific common stockholders in the merger, which was determined based on arms-length negotiations, represents an attractive price. In addition, most if not all, of the merger consideration will be paid in cash with only a small portion, if any, payable in Kimco common stock, the number of shares of which will be fixed just before the closing date.
Favorable Market Conditions
As discussed above in Background of the Merger, the Pan Pacific board of directors determined that the merger allows it to take advantage of conditions in the real estate markets generally, and in Pan Pacifics five core markets specifically, that have created an unusually favorable environment for effecting a strategic transaction to maximize stockholder value:
| Prices for real estate assets, particularly in Pan Pacifics five core markets have increased rapidly in recent years, reaching historic highs, while capitalization rates have reached historic lows. |
31
| Strip center property fundamentals, such as rents, occupancy and tenant expense reimbursement, were strengthening in Pan Pacifics markets. |
| Interest rates remained low by historic standards, but were generally expected to rise in the near-term. As interest rates rise, demand for real estate assets would be expected to decrease, and because REIT stock prices historically have had a negative correlation to interest rates, our stock price may have greater downside risk in the future. |
| A number of large portfolio acquisitions in 2004 and 2005 suggested that a successful sale of Pan Pacific at an attractive valuation was feasible. |
Pan Pacifics Business and Prospects
Pan Pacifics board of directors believes that the merger represents a more desirable alternative for its common stockholders than continuing to operate as an independent public company under Pan Pacifics current strategic business plan. In the view of Pan Pacifics board, pursuing this merger provides more value for Pan Pacifics common stockholders on a risk-adjusted basis than executing Pan Pacifics strategic business plan. In making this determination, the Pan Pacific board considered a number of risks facing Pan Pacific in the future, including the various risks discussed in Pan Pacifics Annual Report on Form 10-K, as well as the following:
| The valuations of public REITs and funds from operations multiples have reached historic highs in recent months, while dividend yields have reached historic lows. |
| Pan Pacifics funds from operations per share multiple is above the mean of strip center REITs generally, while analysts consensus estimates for Pan Pacifics 2006 and 2007 funds from operations per share growth is only in line with the strip center peer average. |
| Pan Pacifics stock price is, and has been since prior to the beginning of the strategic transaction process in 2006, trading at a premium to Pan Pacific managements estimate of the net asset value of Pan Pacifics portfolio. |
| Competition in Pan Pacifics markets for properties and tenants is significant, with numerous strip center REITs or real estate operating companies focused on acquiring strip center properties in our five key markets. |
Other Strategic Alternatives
As discussed above in Background of the Merger, in addition to the merger transaction, our board of directors considered other strategic alternatives that might be available to us, including expanding Pan Pacifics geographic focus beyond its current five key markets, expanding the property type in which Pan Pacific invested (for example, to include regional malls as well as strip centers), pursuing joint ventures to acquire properties, initiating a shopping center development capability, seeking an acquisition of another REIT, pursuing an orderly liquidation of Pan Pacific and exploring a sale of Pan Pacific. After considering the potential benefits and risks to Pan Pacific and Pan Pacifics common stockholders associated with each of these alternatives, Pan Pacifics board of directors determined that the merger represented the alternative that was in the best interests of Pan Pacifics common stockholders.
Opinion of Houlihan Lokey
Pan Pacifics board of directors considered as favorable to its determination the opinion and analyses of Houlihan Lokey described in Fairness Opinion Regarding the Merger Consideration, including the oral opinion of Houlihan Lokey, which was subsequently confirmed in writing, to the effect that, as of July 9, 2006, subject to and based upon the assumptions, factors, qualifications and limitations set forth in its written opinion, the merger consideration to be received by holders of Pan Pacifics common stock and holders of OP Units (other than holders of OP Units who elect to remain limited partners of the respective entities surviving the partnership mergers) pursuant to the merger agreement is fair from a financial point of view to such holders.
32
The High Probability of Transaction Completion
Pan Pacifics board of directors considered as favorable that, in its judgment, there is a high probability of completing the proposed transaction. The merger agreement does not contain a financing condition, therefore whether or not it can obtain attractive financing, Kimco would be obligated to consummate the merger. In addition, the transaction requires no material regulatory approvals.
The Existence of a Limited Termination Right in the Event of a Superior Proposal
Pan Pacifics board of directors is not prohibited from receiving proposals and inquiries for other potential acquisition proposals (although to date Pan Pacific has not received any such inquiries). If, however, before receiving stockholder approval for the merger, Pan Pacific receives an unsolicited bona fide acquisition proposal, Pan Pacific may furnish information to, and participate in discussions and negotiations with, the party making the proposal if Pan Pacifics board of directors determines in good faith that (i) failure to do so would be reasonably likely to be inconsistent with Pan Pacifics directors duties to the company or Pan Pacifics common stockholders, (ii) prior to taking such action, Pan Pacific enters into a confidentiality agreement with the party making the acquisition proposal and (iii) the acquisition proposal is reasonably likely to lead to a transaction that would be more favorable to Pan Pacifics common stockholders than the merger. Upon making such a determination and subject to the satisfaction of specified conditions and payment of a termination fee, Pan Pacific may enter into an agreement with respect to a superior proposal with a third party.
Approval of Pan Pacific Common Stockholders Is Required
The merger is subject to the approval of Pan Pacific common stockholders and our common stockholders have the option to reject the merger agreement and merger.
Pan Pacifics board of directors also considered the following potentially negative factors in its deliberations concerning the merger agreement and the merger:
Recent Trading Prices of Our Common Stock
Although Pan Pacifics board of directors believes that the merger consideration of $70.00 for each share represents an attractive price and a premium to Pan Pacific managements estimated net asset value, the per-share closing price of Pan Pacifics common stock on the last trading day before we announced the merger was $70.00 for each share. Accordingly, the merger consideration of $70.00 for each share provides no premium to the closing price of our common stock on July 7, 2006. As discussed above in Background of the Merger, however, Pan Pacifics board of directors concluded, after extensive discussion, and after taking into account the correlation between speculation about the sale of Pan Pacific in analyst circles, trade publications and mainstream press, the significant increases in the price of our common stock since June 28, 2006 when the rumors first were published, the relative absence of other new, publicly available information about Pan Pacific and the performance of other comparable REITs, that a sale premium was reflected in the price of Pan Pacifics common stock by the time Pan Pacifics board met to consider the proposed merger with Kimco.
Pan Pacifics Common Stockholders Will Be Unable to Share in Pan Pacifics Future Growth
Pan Pacifics board of directors recognized that the merger would preclude Pan Pacific common stockholders from having the opportunity to participate in the future performance of Pan Pacifics assets and any future appreciation in the value of Pan Pacifics common stock. After the closing, common stockholders will no longer share in any of Pan Pacifics future growth or receive quarterly dividends from Pan Pacific. Since December 2003, Pan Pacific has paid annual dividends of $2.17 in 2004 and $2.36 in 2005 for each share to Pan Pacifics common stockholders on a quarterly basis.
33
Tax Consequences to Pan Pacifics Common Stockholders
Pan Pacifics board of directors recognized that the merger is a taxable transaction and, as a result, Pan Pacifics common stockholders will generally be required to pay taxes on any gains that result from their receipt of the merger consideration and on any dividends received in connection with the merger.
Pan Pacifics board of directors considered the significant costs involved in connection with completing the merger, the substantial management time and effort required to effectuate the merger and the related disruption to Pan Pacifics operations. If the merger is not consummated, then Pan Pacific will be required to bear these expenses and the costs of these disruptions. Moreover, Pan Pacifics board considered that if the merger agreement is terminated by Kimco because Pan Pacifics common stockholders do not approve the merger, Pan Pacific would be obligated to reimburse Kimco for its reasonable out-of-pocket expenses incurred in connection with the merger and related transactions up to an aggregate maximum amount of $11.0 million.
Prohibition against Soliciting Other Offers
Even though the merger agreement permits Pan Pacifics board of directors to receive unsolicited inquiries and proposals regarding other potential acquisition proposals, it also prohibits Pan Pacific from soliciting, initiating, knowingly encouraging or taking any other action to facilitate inquiries with respect to acquisition proposals or making any proposals for, or participating in any discussions or negotiations regarding any acquisition proposals except under the circumstances discussed in The Merger AgreementNo Solicitation. If Pan Pacific receives a superior proposal and ultimately enters into an agreement for such a transaction, Pan Pacific would be obligated to pay a termination fee in the amount of $65.0 million to Kimco, subject to certain conditions.
Benefits to Certain Directors and Executive Officers
Pan Pacifics board of directors also considered the fact that Messrs. Tanz and Tyson have interests in the merger that differ from, or are in addition to, and therefore may conflict with, the interests of Pan Pacifics common stockholders. These interests are discussed in Interests of Pan Pacifics Directors and Executive Officers in the Merger, including the lapsing of restrictions and immediate vesting of common stock awarded under Pan Pacifics benefit plans, and additional severance payments that may be received under certain circumstances. Pan Pacifics board believes, however, that Mr. Colmerys significant involvement in, and oversight of, the negotiation of the transaction minimized these potential conflicts. Moreover, Pan Pacifics senior management team and legal advisors had negotiated a transaction in which Pan Pacifics common stockholders would receive the largest amount of merger consideration that Kimco had indicated that it would be willing to pay, satisfying Pan Pacifics directors duties to the company. In addition, Pan Pacifics board determined that the transaction would satisfy Pan Pacifics duties and contractual obligations to the limited partners of CT Operating Partnership, L.P. and Western/Pinecreek, L.P. by providing a structure that would allow them to receive the same merger consideration to be received by Pan Pacifics stockholders or, if they so choose, a continuing holding in limited partnerships formed by Kimco.
In view of the wide variety of factors considered by Pan Pacifics board of directors, Pan Pacifics board did not find it practicable to, and did not, quantify or otherwise attempt to assign relative weights to the specific factors considered. Pan Pacifics board of directors views its recommendation as being based on the totality of the information presented to, and considered by, it. After taking into consideration all of the factors discussed above, among others, Pan Pacifics board of directors determined that the potential benefits of the merger substantially outweigh the potential detriments associated with the merger.
34
Recommendation of Pan Pacifics Board of Directors
Pan Pacifics board of directors, at a special meeting held on July 9, 2006, after due consideration, unanimously:
| determined that it was advisable, fair to and in the best interests of Pan Pacific and Pan Pacifics common stockholders for Pan Pacific to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; and |
| approved the merger agreement and the merger and directed that the merger be submitted to Pan Pacifics common stockholders for approval at a special meeting of stockholders. |
Pan Pacifics board of directors unanimously recommends that Pan Pacifics common stockholders vote FOR the Proposal, the approval of the merger.
Kimcos Reasons for the Merger
The factors that the Kimco board of directors considered in reaching its determination to approve the merger agreement were as follows:
| the belief of Kimcos board of directors, shared by Kimcos management, that the portfolio of neighborhood shopping centers that Kimco would acquire from Pan Pacific in the merger is of high quality and has positive long-term prospects; |
| the fact that Kimco could target a number of properties in Pan Pacifics portfolio for Kimcos strategic co-investment programs, which have historically produced solid investment returns and growth while further expanding Kimcos investment and property management business; |
| the structuring flexibility provided to Kimco in the merger agreement; and |
| the belief of Kimcos board of directors that the overall terms of the merger agreement are fair to Kimco. |
The Kimco board of directors also considered certain potentially negative factors that could arise from the proposed merger. The material potentially negative factors considered were as follows:
| the potential difficulties that Kimco might experience integrating properties acquired in the merger into Kimcos strategic co-investment programs; |
| the risk that Pan Pacific stockholders might not approve the merger; and |
| the risk that the anticipated benefits of the merger might not be fully realized. |
The foregoing discussion addresses the material information and factors considered by Kimcos board of directors in its consideration of the merger. In view of the variety of factors and the amount of information considered, Kimcos board did not find it practicable to, and did not, make specific assessments of, quantify or otherwise assign relative weights to, the specific factors considered in reaching its determination. The recommendation of Kimcos board of directors was made after consideration of all the factors as a whole. In addition, individual members of Kimcos board may have given different weights to different factors.
Fairness Opinion Regarding Merger Consideration
On June 30, 2006, Pan Pacifics board of directors retained Houlihan Lokey Howard & Zukin Financial Advisors, Inc. to render an opinion to the board of directors as to whether the merger consideration to be received by the holders of Pan Pacifics common stock and holders of OP Units (as defined in The Merger AgreementStructure of Merger Transactions) (other than holders of OP Units who elect to remain limited partners of the entities surviving the partnership mergers (as defined in The Merger AgreementStructure of Merger Transactions)) in connection with the merger is fair to such holders from a financial point of view. Houlihan Lokey did not participate in the parties due diligence investigation or in the merger negotiations.
35
Pan Pacifics board of directors selected Houlihan Lokey and decided to retain Houlihan Lokey based upon its experience in the valuation of businesses and their securities in connection with mergers, acquisitions, recapitalizations and similar transactions, particularly with respect to REITs. Houlihan Lokey is a nationally recognized investment banking firm that is continually engaged in providing financial advisory services and rendering fairness opinions in connection with mergers and acquisitions, leveraged buyouts, business valuations and securities valuations for a variety of regulatory and planning purposes, recapitalizations, financial restructurings and private placements of debt and equity securities.
On July 9, 2006, Houlihan Lokey delivered its oral opinion, subsequently confirmed by its written opinion dated July 9, 2006, to the Pan Pacific board of directors to the effect that, as of the date of such opinion, based upon and subject to the assumptions, factors, qualifications and limitations set forth in the written opinion, the merger consideration to be received by the holders of Pan Pacifics common stock and holders of OP Units (other than holders of OP Units who elect to remain limited partners of the respective entities surviving the partnership mergers) in connection with the merger is fair to such holders from a financial point of view.
The full text of the Houlihan Lokey opinion, which describes, among other things, the assumptions made, general procedures followed, matters considered and limitations on the review undertaken by Houlihan Lokey in rendering its opinion is attached to this proxy statement/prospectus as Annex B and is incorporated in this proxy statement/prospectus by reference. The summary of the Houlihan Lokey opinion in this proxy statement/prospectus is qualified in its entirety by reference to the full text of the Houlihan Lokey opinion. Stockholders are urged to read the Houlihan Lokey opinion carefully and in its entirety.
The Houlihan Lokey opinion was furnished for the benefit of the Pan Pacific board of directors in connection with its consideration of the merger. It is not intended to be, and does not, constitute a recommendation to the board of directors or Pan Pacific stockholders or to the holders of OP Units on whether or not to support the merger and is not intended to be, and does not constitute, a recommendation to any Pan Pacific stockholder or holder of OP Units as to how to vote on any matter relating to the merger or the OP Units. In addition, Houlihan Lokeys opinion is not intended to be, and does not constitute, a recommendation to any holder of OP Units as to whether such holder should accept the merger consideration for such holders OP Units or elect to remain a limited partner of the entity surviving the relevant partnership merger. The Houlihan Lokey opinion does not constitute legal, regulatory, accounting, insurance, tax or other similar professional advice.
Houlihan Lokey has no material prior relationship with Pan Pacific or its affiliates. During the last three years Houlihan Lokey has had no material relationship with Kimco or its affiliates. Pan Pacific has agreed to pay Houlihan Lokey $1.25 million in compensation for its services in connection with the rendering of its opinion. In addition, Pan Pacific has agreed to indemnify Houlihan Lokey and its affiliates, agents and advisors against certain liabilities, including liabilities that arise under federal securities laws or out of the engagement of Houlihan Lokey, and to reimburse Houlihan Lokey for its reasonable expenses. No portion of Houlihan Lokeys fee, indemnity or reimbursement rights is contingent upon the conclusions reached in the opinion or the consummation of the merger.
The Houlihan Lokey opinion does not address:
(i) | the underlying business decision of Pan Pacific, its security holders, the holders of OP Units or any other party to proceed with or effect the merger, |
(ii) | the fairness of any portion or aspect of the merger not expressly addressed in the written opinion, |
(iii) | the fairness of any portion or aspect of the merger to the holders of any class of securities, creditors or other constituencies of Pan Pacific or any other party other than those set forth in the written opinion, |
(iv) | the fairness of any portion or aspect of the merger to the holders of OP Units who elect to remain limited partners of the respective entities surviving the partnership mergers, |
36
(v) | the relative merits of the merger as compared to any alternative business strategies that might exist for Pan Pacific or any other party or the effect of any other transaction in which Pan Pacific or any other party might engage, |
(vi) | the tax or legal consequences of the merger to Pan Pacific, its security holders, holders of OP Units or any other party, |
(vii) | the fairness of any portion or aspect of the merger to any one class or group of Pan Pacifics or any other partys security holders vis-à-vis any other class or group of Pan Pacifics or such other partys security holders, or |
(viii) | whether or not Pan Pacific, its security holders, the holders of OP Units or any other party is receiving or paying reasonably equivalent value in the merger. |
In connection with rendering its opinion, Houlihan Lokey made such review, analyses and inquiries as it deemed necessary and appropriate under the circumstances. Among other things Houlihan Lokey:
1. | reviewed Pan Pacifics annual report to shareholders on Form 10-K for the fiscal year ended December 31, 2005, and quarterly report on Form 10-Q for the quarter ended March 31, 2006, which Pan Pacifics management had identified as being the most current financial statements available; |
2. | reviewed Kimcos annual report to shareholders on Form 10-K for the fiscal year ended December 31, 2005, and quarterly report on Form 10-Q for the quarter ended March 31, 2006, which Kimcos management has identified as being the most current financial statements available; |
3. | held discussions with certain members of Pan Pacifics management team regarding the operations, financial condition, future prospects and projected operations and performance of Pan Pacific and regarding the merger, and held discussions with representatives of Pan Pacifics counsel regarding Pan Pacific, the merger, and related matters; |
4. | held discussions with certain members of the management of Kimco regarding the operations, financial condition, future prospects and projected operations and performance of Kimco and regarding the merger; |
5. | reviewed a final draft of the merger agreement, dated July 9, 2006; |
6. | visited certain of Pan Pacifics real property; |
7. | reviewed financial forecasts and projections prepared by our management for the fiscal years ending December 31, 2006 through 2007 and publicly available financial forecasts and projections with respect to Pan Pacific and Kimco for the fiscal years ended December 31, 2006 through 2007; |
8. | reviewed the historical market prices for the past two years and trading volume for the past year for Pan Pacifics and Kimcos publicly traded securities and those of certain publicly traded companies which Houlihan Lokey deemed relevant; |
9. | reviewed certain other publicly available financial data for certain companies that Houlihan Lokey deem relevant and publicly available transaction prices and premiums paid in other change of control transactions that Pan Pacific deemed relevant; and |
10. | conducted such other financial studies, analyses and inquiries as Pan Pacific deemed appropriate. |
Fairness Analysis
In order to determine the fairness of the consideration from a financial point of view, to Pan Pacifics stockholders, Houlihan Lokey determined a range of values for Pan Pacifics common stock. In order to determine such range of value for Pan Pacifics common stock, Houlihan Lokey used the following valuation methodologies: public stock price approach, market approach, comparable transaction approach and net asset value approach:
37
Public Price Approach. Houlihan Lokey reviewed the historical market prices and trading volume for Pan Pacifics publicly traded common stock and reviewed publicly-available analyst reports, news articles and press releases relating to Pan Pacific. Houlihan Lokey also analyzed Pan Pacifics closing stock price on a spot basis and on 5-day and 30-day average basis, both as of July 7, 2006, the trading day immediately preceding public announcement of the merger, and June 23, 2006, the Friday of the week prior to significant movement in the price of Pan Pacifics common stock and published market speculation about a potential sale of Pan Pacific. Based on this analysis, Houlihan Lokey noted per share value indications ranging from $67.30 to $70.05 as of July 7, 2006, and from $65.17 to $66.33 as of June 23, 2006. Based upon the indicated range of stock prices of between $65.00 to $70.00 per share, the public stock price approach implies an enterprise value, which is referred to as EV in this proxy statement, ranging from $3,750 million to $3,950 million. EV was calculated by adding an entitys market value of equity, plus the book value of its existing debt and preferred stock, less cash and cash equivalents.
Market Approach. Houlihan Lokey reviewed certain financial information of the following nine comparable publicly traded retail REITs that are owners/operators of neighborhood and community grocery-anchored shopping centers that were selected solely by Houlihan Lokey: Developers Diversified Realty, Equity One Inc., Federal Realty Investment Trust, Heritage Property Investment Trust, Kimco Realty Corp, New Plan Excel Realty Trust, Realty Income Corp, Regency Centers Corp, and Weingarten Realty Investors.
Houlihan Lokey calculated certain financial ratios of the comparable companies based on the most recent publicly available information. These financial ratios included: (i) capitalization rates of EV to latest twelve months, which is referred to as LTM in this proxy statement, net operating income, which is referred to as NOI in this proxy statement, (ii) multiples EV to LTM earnings before interest, taxes, depreciation and amortizations, which is referred to as EBITDA in this proxy statement, and (iii) multiples of market value of equity, which is referred to as the MVE in this proxy statement, to LTM funds from operations, which is referred to as FFO in this proxy statement. Additionally, based upon consensus earnings forecasts for the comparable public companies identified above, Houlihan Lokey calculated: (i) capitalization rates of EV to next fiscal year (2006) NOI, (ii) capitalization rates of EV to next fiscal year plus one (2007) NOI, (iii) multiples of EV to next fiscal year (2006) EBITDA, (iv) multiples of EV to next fiscal year plus one (2007) EBITDA, (v) multiples of MVE to next fiscal year (2006) FFO, and (vi) multiples of MVE to next fiscal year plus one (2007) FFO. Houlihan Lokey also considered the dividend yield for each of the comparable companies.
Houlihan Lokeys analysis showed that the capitalization rates, multiples and dividend yields exhibited by the comparable companies were as follows:
LTM | 2006 (1) | 2007 (1) | |||||||||||||||||||||||||||||||
Company Name |
FFO Multiple |
EBITDA Multiple |
Cap Rate (NOI) |
FFO Multiple |
EBITDA Multiple |
Cap Rate (NOI) |
FFO Multiple |
EBITDA Multiple |
Cap Rate (NOI) |
Dividend Yield |
Payout Ratio |
||||||||||||||||||||||
Developers Diversified Rlty |
16.3 | x | 19.4 | x | 5.7 | % | 15.4 | x | 17.6 | x | 6.2 | % | 14.3 | x | 16.1 | x | 6.8 | % | 4.4 | % | 66.3 | % | |||||||||||
Equity One Inc. |
12.9 | x | 16.3 | x | 6.7 | % | 12.9 | x | 14.9 | x | 7.3 | % | 12.3 | x | 14.0 | x | 7.8 | % | 5.6 | % | 71.8 | % | |||||||||||
Federal Realty Investment Tr |
22.1 | x | 19.6 | x | 5.5 | % | 20.8 | x | 18.3 | x | 5.9 | % | 18.9 | x | 17.0 | x | 6.3 | % | 3.1 | % | 68.5 | % | |||||||||||
Heritage Ppty Investment Tr |
13.7 | x | 14.8 | x | 7.9 | % | 12.9 | x | 14.4 | x | 7.9 | % | 12.4 | x | 14.1 | x | 8.1 | % | 6.0 | % | 81.3 | % | |||||||||||
Kimco Realty Corp. |
18.6 | x | 16.2 | x | 5.1 | % | 16.9 | x | 14.4 | x | 5.9 | % | 15.2 | x | 12.7 | x | 6.8 | % | 3.6 | % | 69.2 | % | |||||||||||
New Plan Excel Realty Tr |
15.9 | x | 14.3 | x | 7.3 | % | 13.6 | x | 13.7 | x | 7.9 | % | 12.8 | x | 12.8 | x | 8.5 | % | 5.0 | % | 78.7 | % | |||||||||||
Realty Income Corp. |
14.2 | x | 14.8 | x | 7.3 | % | 12.6 | x | 13.3 | x | 8.1 | % | 11.6 | x | 12.3 | x | 8.8 | % | 6.4 | % | 89.9 | % | |||||||||||
Regency Centers Corp. |
17.9 | x | 15.6 | x | 5.8 | % | 16.3 | x | 15.0 | x | 6.0 | % | 15.3 | x | 14.5 | x | 6.3 | % | 3.8 | % | 62.3 | % | |||||||||||
Weingarten Realty Invst |
13.5 | x | 14.9 | x | 7.0 | % | 13.6 | x | 14.7 | x | 7.2 | % | 12.9 | x | 14.1 | x | 7.5 | % | 4.8 | % | 64.9 | % | |||||||||||
Min |
12.9 | x | 14.3 | x | 5.1 | % | 12.6 | x | 13.3 | x | 5.9 | % | 11.6 | x | 12.3 | x | 6.3 | % | 3.1 | % | 62.3 | % | |||||||||||
Max |
22.1 | x | 19.6 | x | 7.9 | % | 20.8 | x | 18.3 | x | 8.1 | % | 18.9 | x | 17.0 | x | 8.8 | % | 6.4 | % | 89.9 | % | |||||||||||
Mean |
16.1 | x | 16.2 | x | 6.5 | % | 15.0 | x | 15.2 | x | 6.9 | % | 14.0 | x | 14.2 | x | 7.4 | % | 4.7 | % | 72.5 | % | |||||||||||
Median |
15.9 | x | 15.6 | x | 6.7 | % | 13.6 | x | 14.7 | x | 7.2 | % | 12.9 | x | 14.1 | x | 7.5 | % | 4.8 | % | 69.2 | % |
Footnotes:
(1) | Calculated based upon analyst projections for the comparable REITs. |
38
Houlihan Lokey derived EV indications for Pan Pacific by applying selected LTM, next fiscal year (2006) and next fiscal year plus one (2007) NOI capitalization rates and EBITDA and FFO multiples to actual adjusted and estimated NOI, EBITDA, and FFO provided by Pan Pacifics management for the twelve months ended March 1, 2006 and the projected twelve month periods ended December 31, 2006 and December 31, 2007. Adjustments to the LTM financial results were made to reflect the acquisition of certain assets during that period. Based on the above, Houlihan Lokey determined that the market approach implied an EV of Pan Pacifics operations ranging from approximately $3,620.0 million to $3,840.0 million. On an MVE basis, the market approach yielded values ranging from $61.94 to $67.30 per share.
Under the dividend yield approach, Houlihan Lokey applied selected market yields to Pan Pacifics stated annual dividend paid to the holders of Pan Pacific common stock in Pan Pacifics 2005 fiscal year, and added the book value of Pan Pacifics existing debt less cash and cash equivalents to derive EV indications. Based on the aforementioned ranges of dividend yields exhibited by the comparable public companies, Houlihan Lokey applied dividend yields of 3.75% to 3.25% to Pan Pacifics fiscal year 2005 dividend per share of $2.36. On the basis of this approach, Pan Pacifics dividend yield implied an EV of Pan Pacifics operations ranging from approximately $3,660.0 million to $4,060.0 million. On an MVE basis, the dividend yield approach indicated values ranging from $62.93 to $72.62 per share.
39
Comparable Transaction Approach: Houlihan Lokey reviewed the consideration paid in selected change of control acquisitions of REITs announced between January 1, 2004 and July 7, 2006 that had a transaction value in excess of one billion dollars and for which purchase price multiples were available and where the target company had an SIC of 6798, as shown in the following table:
($ in millions)
Implied Cap Rate |
Premium Prior to Announcement | |||||||||||||||||||||||
Announced |
Target |
Asset Type |
Acquirer |
EV | EV/EBITDA | 1 Day | 5 Day Avg. | 30 Day Avg. | ||||||||||||||||
6/5/2006 | Trizec Canada, Inc. | Office | Brookfield Properties Corp. | $ | 2,431.5 | NMF | NMF | 30.2 | % | 36.6 | % | 28.2 | % | |||||||||||
6/5/2006 | Trizec Properties, Inc. | Office | Brookfield Properties Corp. | 6,648.0 | 18.2 | x | 6.3 | % | 17.9 | % | 24.2 | % | 17.4 | % | ||||||||||
5/2/2006 | CNL Retirement Properties, Inc. | Healthcare | Health Care Property Investors, Inc. | 5,202.0 | 16.4 | x | 6.1 | % | NA | NA | NA | |||||||||||||
3/7/2006 | Shurgard Storage Centers, Inc. | Self Storage | Public Storage, Inc. | 4,951.1 | 23.8 | x* | 4.2 | %* | 2.4 | % | 1.6 | % | 10.6 | % | ||||||||||
3/6/2006 | CarrAmerica Realty Corp. | Office | The Blackstone Group LP | 4,694.0 | 15.8 | x | 6.3 | % | 8.9 | % | 9.1 | % | 25.8 | % | ||||||||||
2/21/2006 | MeriStar Hospitality Corp. | Lodging | The Blackstone Group LP | 2,493.0 | 14.0 | x | 7.1 | % | 5.2 | % | 5.4 | % | 10.3 | % | ||||||||||
12/22/2005 | Arden Realty, Inc. | Office | General Electric Real Estate | 4,982.4 | 18.5 | x | 5.4 | % | -3.7 | %* | -2.1 | %* | 2.3 | % | ||||||||||
12/19/2005 | Town & Country Trust | Apartment | Onex Corp. | 1,226.9 | 18.1 | x | 5.5 | % | 32.7 | % | 32.3 | % | 34.2 | % | ||||||||||
12/7/2005 | Centerpoint Properties | Industrial | CalEast | 3,326.0 | NMF | 4.1 | % | 9.6 | % | 9.4 | % | 13.0 | % | |||||||||||
11/9/2005 | La Quinta | Lodging | The Blackstone Group LP | 3,404.0 | 14.1 | x | 8.3 | % | 38.9 | % | 33.1 | % | 33.4 | % | ||||||||||
10/24/2005 | Amli Residential Ppty Trust | Apartment | Prime Property Fund | 2,100.0 | 23.9 | x* | 4.2 | %* | 20.7 | % | 22.7 | % | 19.1 | % | ||||||||||
10/3/2005 | Prentiss Properties Trust | Office | Brandywine Realty Trust | 3,277.0 | 15.1 | x | 6.6 | % | 5.8 | % | 6.5 | % | 10.6 | % | ||||||||||
9/2/2005 | Capital Automotive REIT | Retail -Auto | DRA Advisors LLC | 3,400.0 | 18.1 | x | 5.5 | % | 9.3 | % | 9.9 | % | 4.0 | % | ||||||||||
8/16/2005 | Wyndham International | Lodging | The Blackstone Group LP | 3,240.0 | 15.4 | x | 6.6 | % | 18.6 | % | 19.8 | % | 21.1 | % | ||||||||||
6/17/2005 | CRT Properties Inc. | Office | DRA Advisors LLC | 1,699.7 | 17.3 | x | 5.8 | % | 15.4 | % | 17.2 | % | 18.7 | % | ||||||||||
6/7/2005 | Gables Residential Trust | Apartment | ING Clarion Partnership | 2,800.0 | 24.8 | x* | 4.0 | %* | 14.1 | % | 19.5 | % | 17.1 | % | ||||||||||
6/6/2005 | Catellus Development Corp. | Industrial | ProLogis | 4,749.0 | 15.0 | x | 6.0 | % | 25.7 | % | 27.0 | % | 58.6 | % | ||||||||||
5/5/2005 | Storage USA | Self Storage | Extra Space /Prudential Real Estate Investors | 2,291.0 | NMF | 7.4 | % | NA | NA | NA | ||||||||||||||
4/12/2005 | Provident Senior Living Trust | Healthcare | Ventas | 1,197.0 | NMF | 7.0 | % | NA | NA | NA | ||||||||||||||
2/14/2005 | CalPERS / First Washington | Retail | Regency Centers / Macquarie CountryWide | 2,686.0 | 15.9 | x | 6.3 | % | NA | NA | NA | |||||||||||||
12/19/2004 | Kramont Realty Trust | Retail | Centro Watt America REIT III | 1,200.0 | 15.6 | x | 6.4 | % | 17.0 | % | 16.6 | % | 18.2 | % | ||||||||||
10/22/2004 | Cornerstone Realty Income Tr | Apartment | Colonial Properties Trust | 1,425.7 | 15.8 | x | 6.3 | % | 5.3 | % | 8.9 | % | 12.0 | % | ||||||||||
10/4/2004 | Summit Properties Inc. | Apartment | Camden Property Trust | 1,900.0 | 20.1 | x* | 5.0 | %* | 14.0 | % | 19.8 | % | 16.1 | % | ||||||||||
8/24/2004 | Price Legacy Corp. | Retail | PL Retail LLC | 1,200.0 | 14.7 | x | 6.8 | % | 0.7 | % | -0.2 | %* | 2.3 | % | ||||||||||
8/20/2004 | Rouse Co. | Retail | General Growth Properties Inc. | 12,600.0 | 18.9 | x | 5.3 | % | 33.4 | % | 38.3 | % | 41.2 | % | ||||||||||
6/21/2004 | Chelsea Property Group Inc. | Retail | Simon Property Group Inc. | 4,800.0 | 16.9 | x | 5.9 | % | 13.9 | % | 19.9 | % | 27.4 | % | ||||||||||
5/3/2004 | Keystone Property Trust | Industrial | Investor Group | 1,500.0 | 18.9 | x | 5.3 | % | 17.0 | % | 14.2 | % | 0.6 | % | ||||||||||
Low | $ | 1,197.0 | 14.0 | x | 4.1 | % | 0.7 | % | 1.6 | % | 0.6 | % | ||||||||||||
High | $ | 12,600.0 | 18.9 | x | 8.3 | % | 38.9 | % | 38.3 | % | 58.6 | % | ||||||||||||
Median | $ | 3,020.0 | 15.9 | x | 6.3 | % | 14.1 | % | 18.3 | % | 17.2 | % | ||||||||||||
Mean | $ | 3,422.8 | 16.5 | x | 6.2 | % | 15.6 | % | 17.8 | % | 18.8 | % |
* Excluded from Range. Houlihan Lokey excluded certain EV/EBITDA multiples and implied cap rates that were outliers from the range when calculating low, high, median and mean values for the data set. In addition Houlihan Lokey excluded negative premiums when calculating low, high, median and mean premiums observed in comparable transactions.
40
Houlihan Lokey also reviewed the consideration paid in selected change of control acquisitions of retail REITs announced between January 1, 2004 and July 7, 2006 for which purchase price multiples were available and where the target company had an SIC of 6798, as shown in the following table:
Implied | Premium Prior to Announcement | |||||||||||||||||||||||
Announced |
Target |
Asset Type |
Acquirer |
EV | EV/EBITDA | Cap Rate | 1 Day | 5 Day Avg. | 30 Day Avg. | |||||||||||||||
2/14/2005 |
CalPERS / First Washington | Shopping Center | Regency Centers / Macquarie CountryWide | 2,686.0 | 15.9 | x | 6.3 | % | NA | NA | NA | |||||||||||||
12/19/2004 |
Kramont Realty Trust | Shopping Center | Centro Watt America REIT III | 1,200.0 | 15.6 | x | 6.4 | % | 17.0 | % | 16.6 | % | 18.2 | % | ||||||||||
8/24/2004 |
Price Legacy Corp. | Shopping Center | PL Retail LLC | 1,200.0 | 14.7 | x | 6.8 | % | 0.7 | % | -0.2 | %* | 2.3 | % | ||||||||||
Low (1) |
$ | 1,200.0 | 14.7 | x | 6.3 | % | 0.7 | % | 16.6 | % | 2.3 | % | ||||||||||||
High (1) |
$ | 2,686.0 | 15.9 | x | 6.8 | % | 17.0 | % | 16.6 | % | 18.2 | % | ||||||||||||
Median (1) |
$ | 1,200.0 | 15.6 | x | 6.4 | % | 8.9 | % | 16.6 | % | 10.3 | % | ||||||||||||
Mean (1) |
$ | 1,695.3 | 15.4 | x | 6.5 | % | 8.9 | % | 16.6 | % | 10.3 | % | ||||||||||||
9/2/2005 |
Capital Automotive REIT | Automotive | DRA Advisors LLC | 3,400.0 | 18.1 | x | 5.5 | % | 9.3 | % | 9.9 | % | 4.0 | % | ||||||||||
8/20/2004 |
Rouse Co. | Mall | General Growth Properties Inc. | 12,600.0 | 18.9 | x | 5.3 | % | 33.4 | % | 38.3 | % | 41.2 | % | ||||||||||
6/21/2004 |
Chelsea Property Group Inc. | Mall | Simon Property Group Inc. | 4,800.0 | 16.9 | x | 5.9 | % | 13.9 | % | 19.9 | % | 27.4 | % | ||||||||||
Low (2) |
$ | 1,200.0 | 14.7 | x | 5.3 | % | 0.7 | % | 9.9 | % | 2.3 | % | ||||||||||||
High (2) |
$ | 12,600.0 | 18.9 | x | 6.8 | % | 33.4 | % | 38.3 | % | 41.2 | % | ||||||||||||
Median (2) |
$ | 3,043.0 | 16.4 | x | 6.1 | % | 13.9 | % | 18.2 | % | 18.2 | % | ||||||||||||
Mean (2) |
$ | 4,314.3 | 16.7 | x | 6.0 | % | 14.9 | % | 21.2 | % | 18.6 | % |
* Excluded from Range. Houlihan Lokey excluded negative premiums when calculating low, high, median and mean premiums observed in comparable transactions.
(1) | Includes only Shopping Center transactions. |
(2) | Includes all Retail REIT transactions. |
41
Houlihan Lokey reviewed the foregoing comparable transactions to understand the range of multiples paid for the REITs that were subject to such transactions. Houlihan Lokey derived an indication of the range of Pan Pacifics EV by applying the EBITDA and NOI multiples indicated by the identified transactions to Pan Pacifics adjusted LTM EBITDA and NOI ended March 31, 2006. Based on the aforementioned ranges of multiples exhibited by the comparable transactions, Houlihan Lokey applied EBITDA multiples of 16.0x to 17.0x and NOI capitalization rates of 6.50% to 6.00% to Pan Pacifics LTM EBITDA of $234.2 million and LTM NOI of $238.7 million, respectively. Based on this comparable transaction analysis, Houlihan Lokey calculated EV indications to be in the range of $3,710.0 million to $3,980.0 million. On an MVE basis, this approach implied values ranging from $64.13 to $70.71 per share.
Net Asset Value Approach. Houlihan Lokey reviewed the underlying assumptions used by Pan Pacifics management to arrive at Pan Pacifics managements estimated net asset value range for each of Pan Pacifics properties. Specifically, Houlihan Lokey reviewed Pan Pacifics managements asset values and the implied capitalization based upon managements forecasted NOI for the next fiscal year (2006). Houlihan Lokey compared the capitalization rates implied for each asset to publicly available capitalization rate data for the regions in which Pan Pacifics assets are located. The capitalization rates implied by Pan Pacifics managements asset values were generally between 5.5% and 8%. Houlihan Lokey noted that the capitalization rates implied by Pan Pacifics managements asset values were generally within or below the relevant ranges of capitalization rates indicated by the publicly available data.
Houlihan Lokey also noted that Pan Pacifics managements range of estimated market value of Pan Pacifics properties indicated an EV (excluding any transaction costs associated with realizing net asset value and assuming all assets were sold immediately upon liquidation) ranging from $3,640.0 million to $3,940.0 million. On an MVE basis, this approach implied a value range of $62.42 to $69.74 per share. In addition, using Pan Pacifics managements range of estimated market values for Pan Pacifics properties, Houlihan Lokey calculated a value range based on net asset value less estimated transaction costs. In the event of a liquidation of Pan Pacifics properties, transaction costs could include certain interest costs, debt pre-payment penalties, certain taxes and professional fees and expenses. Houlihan Lokey noted that using a net asset value approach that takes into account estimated transaction costs indicated an MVE that ranged between $57.99 and $68.28 per share.
Comparison of Indicated Valuations to Merger Consideration. Houlihan Lokey also analyzed the per share merger consideration provided for in the merger. The per share merger consideration was assumed to be $70.00, which is to be paid in cash unless Kimco elects to include stock consideration, in which case the per share merger consideration would consist of cash consideration of at least $60.00 and a sufficient number of shares of Kimco common stock such that the cash consideration plus the value of the stock consideration would equal $70.00. The stock consideration would be valued using the average closing price for the ten trading days ending two trading days prior to the date of Pan Pacifics stockholder meeting to approve the merger (unless Kimco elects to delay the closing). In connection with its evaluation of the merger consideration, Houlihan Lokey considered the market and trading characteristics of Kimcos common stock, as set forth below.
Kimco Public Market Trading Analysis. Houlihan Lokey analyzed the historical market prices and trading volume of Kimcos publicly held common stock and reviewed analyst reports, news articles and press releases relating to Kimco. Houlihan Lokey noted that Kimcos common stock traded on the New York Stock Exchange at a price ranging between $27.81 and $42.00 per share during the 52-week period ending on July 7, 2006, and that it closed at a price of $36.87 on July 7, 2006. Houlihan Lokey also noted that Kimcos stock benefits from institutional and retail ownership, strong analyst following and trading characteristics that are similar to trading in the stock of its peer companies. It found no evidence suggesting that the price of Kimco common stock indicated by the public market failed to reflect the fair market value of Kimco. Houlihan Lokey, however, noted that, during the period from June 28, 2006 to July 7, 2006, there were press reports and message board speculation regarding potential acquisitions by Kimco.
42
Implied Multiple and Premium Approaches. Houlihan Lokey compared the NOI capitalization rates and EBITDA multiples implied by the merger to the NOI capitalization rates and EBITDA multiples observed in selected change of control transactions of publicly-traded retail REITs that Houlihan Lokey considered comparable to Pan Pacific and the merger. These NOI capitalization rates and EBITDA multiples were determined based upon data drawn from public filings of the companies involved.
On the basis of the closing share price of Pan Pacific common stock on July 7, 2006, Houlihan Lokey concluded that the merger consideration represents an implied capitalization rate of LTM NOI and of next fiscal year (2006) NOI of 6.0% and an implied capitalization rate of net fiscal year plus one (2007) NOI of 6.2% as compared with the comparable public companies, which indicated a median LTM NOI capitalization rate of 6.7%, a median next fiscal year (2006) NOI capitalization rate of 7.2%, and a median next fiscal year plus one (2007) NOI capitalization rate of 7.5%. Houlihan Lokey also compared the 6.0% to 6.2% implied capitalization rates to comparable retail REIT transactions involving shopping centers, which exhibited a median NOI capitalization rate of 6.4%, and to all retail REIT transactions, which exhibited a median NOI capitalization rate of 6.1%. Similarly, Houlihan Lokey concluded that the merger consideration represents an implied multiple of LTM EBITDA of 16.9x, an implied multiple of next fiscal year (2006) EBITDA of 17.1x and an implied multiple of net fiscal year plus one (2007) EBITDA of 16.6x, as compared with comparable public companies, which indicated a median LTM EBITDA multiple of 15.6x, a median next fiscal year (2006) EBITDA multiple of 14.7x and a median next fiscal year plus one (2007) EBITDA multiples of 14.1x. Houlihan Lokey also compared the implied 16.6 to 17.1x EBITDA multiples to comparable retail REIT transactions involving shopping centers, which exhibited a median EBITDA multiple of 15.6x, and to all retail REIT transactions, which exhibited a median EBITDA multiple of 16.4x.
43
Houlihan Lokey also reviewed certain publicly available information related to selected transactions announced between January 1, 2004 and July 7, 2006 to calculate the premiums implied by the consideration paid by acquirers in the selected transactions. As summarized in the following table, Houlihan Lokey compared the premiums paid in these selected transactions to the premiums implied in the merger based on the closing share price of Pan Pacifics common stock on July 7, 2006, the trading day immediately preceding public announcement of the merger, and June 23, 2006, the Friday of the week prior to significant movement in the price of Pan Pacifics common stock and published market speculation about a potential sale of Pan Pacific. Houlihan Lokey also calculated the average closing share price for Pan Pacifics common stock for the 5 day and 30-day periods prior to and including both July 7, 2006 and June 23, 2006. For comparison purposes, the table also shows the closing price for the 1 day and the average closing price for the 5-day and 30-day periods prior to announcement of the comparable public company acquisition transactions:
Offer Price |
$ | 70.00 | $ | 70.00 | $ | 70.00 | ||||||
Spot | 5 Day Avg. | 30 Day Avg. | ||||||||||
Current Trading Price: July 7, 2006 |
$ | 70.00 | $ | 70.05 | $ | 67.30 | ||||||
Implied Premiums |
0.0 | % | -0.1 | % | 4.0 | % | ||||||
Market Speculation: June 23, 2006 |
$ | 65.17 | $ | 65.88 | $ | 66.33 | ||||||
Implied Premiums |
7.4 | % | 6.3 | % | 5.5 | % | ||||||
Transaction Premiums (2004-Current) | ||||||||||||
Premium Prior to Announcement | ||||||||||||
1 Day | 5 Day Avg. | 30 Day Avg. | ||||||||||
Retail REIT Transactions |
||||||||||||
Low |
0.7 | % | 9.9 | % | 2.3 | % | ||||||
High |
33.4 | % | 38.3 | % | 41.2 | % | ||||||
Median |
13.9 | % | 18.2 | % | 18.2 | % | ||||||
Mean |
14.9 | % | 21.2 | % | 18.6 | % | ||||||
REIT Transactions > $1 Billion |
||||||||||||
Low |
0.7 | % | 1.6 | % | 0.6 | % | ||||||
High |
38.9 | % | 38.3 | % | 58.6 | % | ||||||
Median |
14.1 | % | 18.3 | % | 17.2 | % | ||||||
Mean |
15.6 | % | 17.8 | % | 18.8 | % |
Assumptions
For purposes of its opinion, Houlihan Lokey did not undertake any inquiry as to, or take into consideration, the possible tax consequences of the merger (including whether the public shareholders of Pan Pacific will recognize taxable income as a result of participating in the merger). Such tax consequences could be material and could affect the analysis underlying the conclusions reached in the Houlihan Lokey opinion.
Houlihan Lokeys opinion was based on the financial, economic, market and other conditions, as in effect on, and the information made available to it as of, July 9, 2006. Houlihan Lokey did not undertake, and is under no obligation, to update, revise, reaffirm or withdraw its opinion, or otherwise comment on or consider events occurring after the date of its opinion. In rendering its opinion, Houlihan Lokey relied upon and assumed, without independent verification, the accuracy and completeness of all data, material and other information furnished, or otherwise made available, to it, discussed with or reviewed by it, or publicly available, and does not assume any responsibility with respect to such data, material and other information. In addition, Houlihan Lokey relied upon and assumed, without independent verification, that the financial forecasts and projections have been reasonably prepared on bases reflecting the best currently available estimates and judgments of the future
44
financial results and condition of Pan Pacific, and Houlihan Lokey expressed no opinion with respect to such forecasts and projections or the assumptions on which they are based. In addition, Houlihan Lokey relied upon and assumed, without independent verification, that publicly available financial forecasts and projects for Pan Pacific and Kimco represented reasonable estimates and judgments of the future financial results and condition of Pan Pacific and Kimco, and Houlihan Lokey expressed no opinion with respect to such forecasts and projections or the assumptions on which they are based. Houlihan Lokey relied upon and assumed, without independent verification, that there was no material change in the assets, liabilities, financial condition, results of operations, business or prospects of Pan Pacific or Kimco since the date of the most recent financial statements provided to it, and that there was no information or facts that would make the information reviewed by it incomplete or misleading. Houlihan Lokey did not consider any aspect or implication of any transaction to which Pan Pacific or Kimco is a party (other than the merger). In addition, Houlihan Lokey assumed, based on the advice of Pan Pacific management, that the value of each OP Unit was identical to the value of one share of our common stock and that holders of OP Units had as of the date of the written opinion, and will continue to have through the effective time of the merger, the right to freely exchange their OP Units for shares of Pan Pacific common stock on a one-to-one basis. Houlihan Lokey also assumed that the Kimco shares to be issued to holders of Pan Pacific common stock and OP Units in the merger will be listed on the New York Stock Exchange. Houlihan Lokey was not requested to make, and did not make, any physical inspection or independent appraisal or evaluation of any of the assets, properties or liabilities (contingent or otherwise) of Pan Pacific, Kimco or any other party, nor was it provided with any such appraisal or evaluation. Houlihan Lokey expressed no opinion regarding the liquidation value of any entity. Houlihan Lokey undertook no independent analysis of any potential or actual litigation, regulatory action, possible unasserted claims or other contingent liabilities, to which Pan Pacific, Kimco or any other party is or may be a party or is or may be subject, or of any governmental investigation of any possible unasserted claims or other contingent liabilities to which Pan Pacific, Kimco or any other party is or may be a party or is or may be subject.
Houlihan Lokey also relied upon and assumed, without independent verification, that:
(a) | the representations and warranties of all parties to the merger agreement and any other related documents and instruments that are referred to therein were true and correct, |
(b) | each party to all such agreements will fully and timely perform all of the covenants and agreements required to be performed by such party, |
(c) | all conditions to the consummation of the merger will be satisfied without waiver thereof, |
(d) | the merger will be consummated in a timely manner in accordance with the terms described in the agreements provided to Houlihan Lokey, without any amendments or modifications thereto or any adjustment to the aggregate consideration (through offset, reduction, indemnity claims, post-closing purchase price adjustments or otherwise), |
(e) | all governmental, regulatory, and other consents and approvals necessary for the consummation of the merger will be obtained and that no delay, limitations, restrictions or conditions will be imposed that would result in the disposition of any material portion of the assets of Pan Pacific, CT Operating Partnership, L.P., Western/Pincreek, L.P. or Kimco, or otherwise have an adverse effect on Pan Pacific, CT Operating Partnership, L.P., Western/Pincreek, L.P. or Kimco or any expected benefits of the merger, and |
(f) | that the final forms of the documents identified in the written opinion will not differ in any material respect from such draft documents. |
The summary set forth above describes the material points of more detailed analyses performed by Houlihan Lokey in arriving at its opinion. The preparation of a fairness opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and application of those methods to the particular circumstances and is therefore not readily susceptible to summary description. In arriving at its opinion, Houlihan Lokey made qualitative judgments as to the significance and relevance of each
45
analysis and factor. Accordingly, Houlihan Lokey believes that its analyses and summary set forth herein must be considered as a whole and that selecting portions of its analyses, without considering all analyses and factors, or portions of this summary, could create an incomplete and/or inaccurate view of the processes underlying the analyses set forth in Houlihan Lokeys opinion. In its analysis, Houlihan Lokey made numerous assumptions with respect to Pan Pacific, the merger, industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of the respective entities. The estimates contained in such analyses are not necessarily indicative of actual values or predictive of future results or values, which may be more or less favorable than suggested by such analyses. Additionally, analyses relating to the value of the businesses or securities of Pan Pacific or Kimco are not appraisals. Accordingly, such analyses and estimates are inherently subject to substantial uncertainty.
Accounting Treatment for the Merger
The merger will be accounted for using the purchase method of accounting, with Kimco treated as the acquiror. Under this method of accounting, Pan Pacifics assets and liabilities will be recorded by Kimco at their respective fair values as of the closing date of the merger and added to those of Kimco. Financial statements of Kimco issued after the merger will reflect these values, but will not be restated retroactively to reflect the historical financial position or results of operations of Pan Pacific prior to the merger. The results of operations of Pan Pacific will be included in the results of operations of Kimco beginning on the effective date of the merger.
Neither Kimco nor Pan Pacific is aware of any material federal or state regulatory approvals which must be obtained in connection with the merger.
Delisting and Deregistration of Pan Pacific Common Stock; Listing of Kimco Common Stock Issued in Connection with the Merger
Pan Pacific common stock currently is listed on the New York Stock Exchange under the symbol PNP. Upon completion of the merger, Pan Pacific common stock will be delisted from the New York Stock Exchange and deregistered under the Securities Exchange Act of 1934. Application will be made for the listing of the shares of Kimco common stock to be issued in the merger on the New York Stock Exchange under the symbol KIM. The approval for listing of such shares on the New York Stock Exchange is not a condition to the completion of the merger but is only a condition to closing if Kimco elects to deliver shares of its common stock as part of the merger consideration. See The Merger AgreementConditions to Obligations to Complete the Merger. Following the merger, holders of Pan Pacific common stock will be instructed to exchange their outstanding stock certificates for cash and, if Kimco makes a stock election, stock certificates representing shares of Kimco common stock. See The Merger AgreementExchange of Stock Certificates.
Appraisal or Dissenters Rights
Neither Kimco nor Pan Pacific stockholders are entitled to any appraisal or dissenters rights under Maryland law as a result of the merger.
Litigation Related to the Merger
On July 11, 2006, a lawsuit was filed by Doris Staehr and all others similarly situated against Pan Pacific and all members of Pan Pacifics board of directors (Stuart A. Tanz, David P. Zimel, Joseph P. Colmery, Bernard M. Feldman and Mark J. Riedy) in the Superior Court for San Diego County, California. In addition, on July 12, 2006, a lawsuit was filed by Michael Nick against Pan Pacific in the Superior Court for San Diego County, California. Both suits are denominated as class action purportedly on behalf of a class of Pan Pacific stockholders. The complaints are substantially similar, and both allege, among other things, that the members of
46
Pan Pacifics board breached their fiduciary duties owed to the purported class by entering into a merger agreement that favors the interests of certain members of the board but is detrimental to Pan Pacifics public stockholders. The plaintiffs further allege that the defendants breached their fiduciary duties to the purported class by tailoring the deal to meet the specific needs of Kimco rather than maximizing value to Pan Pacific stockholders. The plaintiffs seek relief:
| ordering the action to be maintained as a class action and certifying plaintiffs as the class representatives; |
| declaring that the merger agreement was entered into by the defendants in breach of their fiduciary duties and is unlawful and unenforceable; |
| enjoining the completion of the merger unless and until Pan Pacific implements a procedure to obtain the highest price for the company; |
| directing the defendants to exercise their fiduciary duties to obtain a transaction that is in the best interest of the stockholders; |
| rescinding the merger to the extent it has already been implemented; |
| setting up a constructive trust in favor of the plaintiffs upon any benefits received by defendants as a result of their wrongful conduct; |
| awarding plaintiff the costs of the action, including reasonable attorneys and experts fees; and |
| granting such other and further relief as the Court may deem just and proper. |
On August 23, 2006, the parties reached an agreement in principle to settle the Staehr and Nick lawsuits. The proposed settlement is subject to court approval following notice to the classes and a hearing.
In addition, on August 6, 2006, shareholders of the Company filed a purported class action against the Company, its directors and Kimco in the Circuit Court for Baltimore County, Maryland on behalf of all holders of stock in the Company. The complaint alleges that defendants have breached their fiduciary duties to Company shareholders and, in the case of Kimco, conspired in and aided and abetted such breaches, in causing the Company to be sold to Kimco for an inadequate consideration. The plaintiffs seek relief:
| ordering the action to be maintained as a class action and certifying plaintiffs as the class representatives; |
| declaring that the Company, its directors and Kimco Realty Corp. breached their fiduciary duties, conspired in such breaches and aided and abetted in such breaches; |
| enjoining the completion of the merger and, if the merger is already completed, rescinding it; |
| awarding plaintiff compensatory and/or recissory damages; |
| granting such other relief as the Court may deem just and proper. |
While these cases are in their early stages, Pan Pacific believes that the cases are without merit and intends to contest each of them vigorously.
47
INTERESTS OF DIRECTORS AND EXECUTIVE OFFICERS OF
PAN PACIFIC IN THE MERGER
In considering the recommendation of the Pan Pacific board to approve the merger, Pan Pacific stockholders should be aware that certain of Pan Pacifics directors and executive officers have certain interests in the merger that are different from or in addition to, and, therefore, may conflict with, the interests of Pan Pacific stockholders generally. When members of Pan Pacifics board approved the merger and the merger agreement and recommended the approval of the merger to Pan Pacific stockholders, the members of Pan Pacifics board knew about and considered these additional interests. Certain of these interests are set forth below.
At the close of business on the record date, the directors and officers of Pan Pacific owned and were entitled to vote 686,425 shares of Pan Pacific common stock, collectively, which represented approximately 1.7% of the outstanding shares of Pan Pacific common stock.
Employment Agreements; Acceleration of Stock Awards
Each of Stuart A. Tanz, Joseph B. Tyson and Jeffrey S. Stauffer is party to an employment agreement with Pan Pacific. Each employment agreement provides for the payment of a cash severance benefit and for the acceleration of vesting with respect to options and restricted stock granted to the executive officer, if the executive officers employment is terminated other than for good cause, or if, pursuant to his employment agreement, he voluntarily terminates his employment upon the occurrence of a change of control, which includes a merger of any corporation with or into Pan Pacific, which merger has been approved by Pan Pacific stockholders. The cash severance benefit that would be payable under such circumstances would equal, for Mr. Tanz, three times base salary plus the average of his two most recent annual bonuses, and for Messrs. Tyson and Stauffer, two times base salary plus the average of the officers two most recent annual bonuses. In addition, each individual will be entitled to continued health benefits for three years (four years in the case of Mr. Tanz) following a termination entitling the officer to severance under the employment agreement, and the non-competition covenant in the individuals employment agreement will not apply following such a termination. The employment agreement also provides that the executive officer will be entitled to an additional tax gross up payment, if the executive officers compensation and benefits would be subject to the excise tax on excess parachute payments under Section 4999 of the Internal Revenue Code. None of the executive officers is expected to receive tax gross up payments in connection with the proposed merger.
In addition, in connection with the merger, all outstanding options to purchase Pan Pacific common stock will be canceled and converted into the right to receive a cash amount equal to the product of the excess of $70 over the per share exercise price of the option and the number of shares of Pan Pacific common stock underlying the unexercised portion of the option. None of Pan Pacifics executive officers or directors holds outstanding stock options other than director Mark J. Riedy. Mr. Riedy holds 2,000 fully vested options which were issued in April 2002 at a strike price of $30.42. Also, in connection with the merger, the vesting of all outstanding restricted shares of Pan Pacific common stock will be fully accelerated.
The amount of cash severance benefits to be received by certain of Pan Pacifics directors and executive officers upon a qualifying termination, as well as the number of unvested restricted shares held by each such individual as of the date hereof, is set forth below:
Name of Individual |
Cash Severance Amount | Number of Restricted Shares | |||||||||
Salary | Bonus | Total | |||||||||
Stuart A. Tanz |
$ | 2,400,000 | $ | 1,800,000 | $ | 4,200,000 | 88,858 | ||||
Joseph B. Tyson |
$ | 830,000 | $ | 600,000 | $ | 1,430,000 | 42,263 | ||||
Jeffrey S. Stauffer |
$ | 756,000 | $ | 600,000 | $ | 1,356,000 | 32,166 |
48
Pursuant to the terms of the merger agreement, Kimco has agreed to provide the officers and directors of Pan Pacific and its subsidiaries with rights to indemnification and exculpation with respect to matters occurring at or prior to the merger, including, without limitation, all transactions contemplated by the merger agreement, which are the same as the rights to indemnification and exculpation under their respective charter documents or bylaws as in effect immediately before the merger. The merger agreement also obligates Kimco to provide additional indemnification to the officers, directors and employees of Pan Pacific and its subsidiaries. For a period of six years following the merger, Kimco will maintain in effect a directors and officers liability insurance policy covering the persons currently covered by Pan Pacifics directors and officers liability insurance policy, including Pan Pacifics current directors and officers. The new directors and officers liability insurance policy will have coverage in amount and scope at least as favorable as Pan Pacifics existing coverage, provided that Pan Pacific will not be required to spend more than 200% of the aggregate of Pan Pacifics current premiums to obtain such coverage. If the premium for a policy having comparable coverage exceeds this amount, then Kimco will be only obligated to maintain in place a policy which provides the maximum coverage that is reasonably available at such amount. Kimco has further agreed to indemnify and hold harmless, to the fullest extent permitted by applicable law, each person presently covered by the directors and officers liability insurance policy of Pan Pacific against any costs, damages or expenses or amounts paid in settlement that are incurred in connection with any civil, criminal, administrative or investigative action that arises out of or pertains to matters existing or occurring at or prior to the merger.
49
The following is a brief summary of the material provisions of the merger agreement, a copy of which is attached as Annex A and is incorporated by reference in this proxy statement/prospectus. This summary is qualified in its entirety by reference to the merger agreement. We urge all stockholders of Pan Pacific to read the merger agreement in its entirety.
The merger agreement contains representations and warranties that the parties have made to each other as of specific dates. The assertions embodied in those representations and warranties were made solely for purposes of the contract between the parties, and may be subject to important qualifications and limitations agreed to by the parties in connection with negotiating its terms. Moreover, the representations and warranties are subject to a contractual standard of materiality that may be different from what may be viewed as material to stockholders, and the representations and warranties may have been used for the purpose of allocating risk between the parties rather than establishing matters as facts. For the foregoing reasons, you should not rely on the representations and warranties as statements of factual information.
The merger agreement provides that KRC Acquisition Inc., a subsidiary of Kimco, will be merged with and into Pan Pacific; provided, however, that Kimco has the right to reverse the direction of the merger in which event Pan Pacific will merge with and into KRC Acquisition Inc. At the effective time of the merger, the surviving corporation will be renamed Pan Pacific Retail Properties, Inc. and will continue as the surviving corporation in accordance with the Maryland General Corporation Law and will become or will continue as subsidiary of Kimco.
Closing and Effective Time of the Merger
The merger agreement provides that the closing of the merger will take place as soon as practicable, but no later than the second business day, after all of the closing conditions (including receipt of the approval of Pan Pacifics stockholders) have been satisfied, or at such other time and date as Kimco and Pan Pacific agree. Kimco, at its option, may decide to delay the closing date for up to 45 days following the satisfaction of the closing conditions if the delay would not make it necessary to delay the Pan Pacific stockholders meeting by more than 10 business days. In the event that Kimco elects a delayed closing, the value of Kimco common stock included in the merger consideration if a stock election has been made and not revoked will be based on the average closing price of Kimco common stock over the 10 trading days immediately preceding the delayed closing date.
The merger will become effective on the date of the filing with, and acceptance for record of, articles of merger by the State Department of Assessments and Taxation of Maryland.
We are working to complete the merger quickly. We currently expect to complete the merger in during the fourth quarter of 2006. However, because completion of the merger is subject to a series of conditions described below in this summary, we cannot predict the exact timing.
Structure of Merger Transactions
Pan Pacific has agreed that, if requested by Kimco, it will enter into one or more asset sales. The closing of the asset sales would occur prior to the effective time of the merger. If there are one or more asset sales, Pan Pacific will declare and pay a dividend to holders of Pan Pacific common stock in an amount equal to the net proceeds of such asset sales, and the cash consideration portion of the merger consideration will be reduced by the amount of such dividend. Pan Pacific has also agreed to any changes in the direction of the mergers requested by Kimco, so that another party to the merger survives, and to cooperate with Kimco with any other reasonable
50
changes in structure requested by Kimco and consented to by Pan Pacific to the extent that modifications to the merger agreement or other actions are required, such consent not to be unreasonably withheld by Pan Pacific.
In addition, under the terms of the merger agreement, CT Operating Partnership, L.P., a subsidiary of Pan Pacific, will merge with and into KRC CT Acquisition Limited Partnership, a subsidiary of Kimco, and KRC PC Acquisition Limited Partnership, a subsidiary of Kimco, will merge with and into Western/Pinecreek, L.P., a subsidiary of Pan Pacific. These mergers are referred to as the partnership mergers. Pan Pacific has also agreed to cooperate with Kimco and agree to changes in the direction of the merger. At the effective time of the partnership mergers, each common unit of limited partnership interest, referred to as OP units, in CT Operating Partnership, L.P. and Western/Pinecreek, L.P. will be converted into the right to receive the merger consideration, unless an OP unit holder elects, with regard to some or all of its OP units, to continue as a limited partner of KRC CT Acquisition Limited Partnership or Western/Pinecreek, L.P., as the case may be, in which case the holder will not be entitled to receive the merger consideration for such OP units. Those holders of OP units who elect to continue as limited partners of KRC CT Acquisition Limited Partnership or Western/Pinecreek, L.P. will continue on the terms and conditions set forth in the governing documents of those entities, which will be determined by Kimco at its sole discretion.
At the effective time of the merger, each issued and outstanding share of Pan Pacific common stock will be converted into the right to receive $70 in cash (reduced by the amount of any dividends of net proceeds from asset sales and dividends (other than regular quarterly dividends permitted in the event Kimco delays closing) required to maintain its REIT status); however, Kimco may elect to deliver up to $10 of the per share merger consideration in the form of Kimco common stock. Kimco has the right to make this stock election any time prior to the date which is 15 days prior to the date of the Pan Pacific stockholders meeting. As soon as practicable after the date which is 15 days prior to the date of the Pan Pacific stockholders meeting, Kimco and Pan Pacific will issue a joint press release announcing whether Kimco has made a stock election and the amount of such election, and will issue another joint press release as soon as practicable announcing the number of shares of Kimco common stock that Pan Pacific stockholders will receive in the merger. Kimco may revoke its stock election at any time if the revocation would not delay the Pan Pacific stockholders meeting by more than 10 business days.
If Kimco makes and does not revoke the stock election, the number of shares of Kimco common stock that the Pan Pacific stockholders will receive will be determined based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the trading day which is two days prior to the Pan Pacific stockholders meeting or, if Kimco has elected to delay the closing, based on the closing price average of Kimco common stock over the 10 trading days immediately preceding the closing date. As of the effective time of the merger, each share of Pan Pacific common stock will be canceled and retired, and each share of common stock of KRC Acquisition Inc. will be converted into one share of Pan Pacific common stock.
If Kimco elects to deliver shares of its common stock as part of the merger consideration, no fractional shares of Kimco common stock will be issued in the merger. Instead of fractional shares, Pan Pacific stockholders will receive cash, without interest, in an amount equal to such fractional amount multiplied by the average closing price of Kimco common stock (as reported on the New York Stock Exchange) over the ten trading days immediately preceding the date of the merger.
Treatment of Pan Pacific Stock Options and Restricted Stock
In connection with the merger, all outstanding Pan Pacific stock options will be accelerated and fully vested. Regardless of whether Kimco makes a stock election, each then-outstanding Pan Pacific stock option will be cancelled and the holder of the option will be entitled to receive cash in an amount equal to the product obtained by multiplying the excess of $70 over the per share exercise price of the option by the number of shares of Pan Pacific common stock underlying the unexercised portion of the option.
51
Immediately prior to the effective time of the merger, the vesting of each restricted share of Pan Pacific common stock granted under any Pan Pacific stock plan will be fully accelerated and the contractual restrictions on such shares will terminate.
Directors and officers of Kimco and Pan Pacific will be exempted, to the extent necessary and permissible, under Rule 16b-3 promulgated under the Securities and Exchange Act of 1934, as amended, with respect to transactions pursuant to the merger agreement.
Exchange of Stock Certificates
Surrender of Certificates Representing Shares of Pan Pacific Common Stock. Kimco has designated to serve as exchange agent for the exchange of certificates representing Pan Pacific common stock for cash and, if the stock election is made, certificates representing Kimco common stock and the payment of cash in lieu of fractional shares. Promptly after the merger, the exchange agent will mail to each record holder of certificates representing shares of Pan Pacific common stock a letter of transmittal and instructions for surrendering the certificates for exchange and payment. Holders of certificates who surrender their certificates to the exchange agent together with a duly completed and validly executed letter of transmittal will receive cash and, if the stock election is made, certificates representing the number of whole shares of Kimco common stock, cash in lieu of any fractional shares of Kimco common stock, and any dividends or distributions to which they are entitled. The surrendered certificates will be canceled.
Failure to Exchange. One year after the completion of the merger, Kimco can require the exchange agent to deliver to Kimco all unclaimed cash and shares of Kimco common stock. Thereafter, Pan Pacific stockholders must look only to Kimco for payment of their consideration on their Pan Pacific shares and they will have no greater rights against Kimco than general creditors of Kimco will have. If any Pan Pacific stockholder has failed to exchange certificates representing Pan Pacific common stock prior to two years after the effective time (or immediately prior to the date on which any merger consideration would otherwise escheat or become the property of a government agency), any such merger consideration will become the property of Pan Pacific to the extent permitted by applicable law.
No Liability. Neither Kimco nor the exchange agent will be liable to any holder of a certificate for shares of Kimco common stock or any cash payable in lieu of any fractional shares of Kimco common stock delivered to a public official under any applicable abandoned property, escheat or similar law.
No Further Registration or Transfer of Pan Pacific Common Stock. Upon the completion of the merger, there will be no further registration of transfers of shares of Pan Pacific common stock on the records of Pan Pacific.
No Further Rights. From and after the completion of the merger, the holders of certificates representing ownership of Pan Pacific common stock outstanding immediately before the completion of the merger shall cease to have rights with respect to such shares of Pan Pacific common stock, except as otherwise provided for by the merger agreement or applicable law.
Dividends and Distributions. No dividends or other distributions declared or made after the completion of the merger with respect to shares of Kimco common stock will be paid to the holder of any unsurrendered certificates which previously represented shares of Pan Pacific common stock, and no cash payment in lieu of fractional shares will be paid to any such holder until the holder surrenders such certificate as provided above. Upon surrender of the certificate, Kimco will pay to the holder, without interest, any dividends or distributions with respect to such shares of Kimco common stock that have become payable between the effective time of the merger and the time of such surrender and to which the holder is entitled.
52
Lost Certificates. If any certificates representing Pan Pacific stock are lost, stolen or destroyed, Pan Pacific stockholders must provide an appropriate affidavit to the exchange agent in order to receive Pan Pacific certificates. Kimco may require the owner of such lost, stolen or destroyed certificates to deliver a bond as indemnity against any claim that may be made against Kimco or the exchange agent with respect to any such lost, stolen or destroyed certificates.
Withholding Rights. If the Code or any provision of state, local or foreign tax law so requires, Kimco and the exchange agent are entitled to withhold and deduct the required amounts from the merger consideration otherwise payable to any holder of shares of Pan Pacific common stock. Any amounts withheld will be treated as having been paid to the holder of the shares of Pan Pacific common stock.
Holders of Pan Pacific common stock should not send in their certificates until they receive a transmittal letter from the exchange agent.
Representations and Warranties
The merger agreement contains customary representations and warranties of Pan Pacific regarding certain aspects of its business and properties and other matters pertaining to the merger, including:
| corporate matters, including due organization and qualification; |
| authority relative to execution and delivery of the merger agreement; |
| capitalization; |
| subsidiaries and other interests; |
| absence of conflicts with, or violations of, organizational documents or other obligations as a result of the merger and governmental filings, and consents necessary to complete the merger; |
| compliance with applicable law; |
| the timely filing and accuracy of SEC reports and financial statements; |
| the absence of changes; |
| legal proceedings; |
| tax matters; |
| employee benefit matters and labor relations; |
| information concerning properties; |
| material contracts; |
| environmental matters; |
| the opinion of Pan Pacifics financial advisor; |
| brokers fees payable in connection with the merger; |
| the required vote in connection with the merger; |
| insurance matters; |
| inapplicability of takeover provisions of applicable law; |
| affiliate transactions; and |
| the accuracy of information supplied for inclusion in this proxy statement/prospectus and other similar documents. |
53
Representations by CT Operating Partnership, L.P. and Western/Pinecreek, L.P. include those relating to corporate matters, including due organization and qualification and absence of conflicts with, or violations of, organizational documents or other obligations as a result of the merger and governmental filings, and consents necessary to complete the merger.
The merger agreement also contains customary representations and warranties of Kimco regarding various matters pertinent to the merger. Representations by Kimco include:
| corporate matters, including due organization and qualification; |
| authority relative to execution and delivery of the merger agreement; |
| capitalization; |
| absence of conflicts with, or violations of, organizational documents or other obligations as a result of the merger and governmental filings, and consents necessary to complete the merger; |
| compliance with applicable law; |
| the timely filing and accuracy of SEC reports and financial statements; |
| the absence of certain changes; |
| legal proceedings; |
| brokers fees payable in connection with the merger; |
| tax matters; |
| the required vote in connection with the merger; |
| the accuracy of information supplied for inclusion in this proxy statement/prospectus and other similar documents; |
| authorization to issue Kimco common stock; and |
| the operation of the merger entities between signing and closing. |
Representations by KRC Acquisition Inc., KRC CT Acquisition Limited Partnership and KRC PC Acquisition Limited Partnership include those relating to corporate matters, including due organization and qualification, and the accuracy of information supplied for inclusion in this proxy statement/prospectus and other similar documents. KRC Acquisition Inc. also makes representations relating to the absence of conflicts with, or violations of, organizational documents or other obligations as a result of the merger and governmental filings, and consents necessary to complete the merger.
Kimcos representations and warranties regarding capitalization, compliance with applicable law, absence of conflicts with, or violations of, organizational documents or other obligations as a result of the merger and governmental filings, and consents necessary to complete the merger, the timely filing and accuracy of SEC reports and financial statements, absence of certain changes, tax matters, the accuracy of information supplied for inclusion in this proxy statement/prospectus and other similar documents, the accuracy of information supplied for inclusion in this proxy statement/prospectus and other similar documents and authorization to issue Kimco common stock need only be accurate if, on the closing date, Kimco has made and not revoked a stock election.
Conduct of Business Pending the Merger
Pan Pacific has agreed that, until the earlier of the termination of the merger agreement or the completion of the merger, it will and will cause its subsidiaries to:
| carry on its business in the ordinary course in substantially the same manner as previously conducted; |
54
| pay its debts and taxes when due, subject to good faith disputes, in the ordinary course in substantially the same manner as previously paid; |
| pay or perform other material obligations when due, in the ordinary course in substantially the same manner as previously paid or performed; |
| maintain insurance coverage and its books, accounts and records in the usual manner generally consistent with past practices; |
| comply in all material respects with all applicable laws, ordinances and regulations of governmental entities; |
| maintain and keep its properties and equipment in good repair, working order and condition; and |
| use all reasonable efforts to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors and others with which it has business dealings. |
During the same period, Pan Pacific has also agreed that each of Pan Pacific and its subsidiaries will not, without the written consent of Kimco:
| adopt or propose any amendment to its organizational documents, except as provided for in the merger agreement; |
| except as provided in the merger agreement, issue or authorize the issuance of additional shares of its capital stock or grant any stock options or make any agreements with respect to any of its shares of capital stock or any of its other securities; |
| amend or waive any terms of any option, warrant or stock option plan of Pan Pacific or any of its subsidiaries or authorize cash payments for any options granted under any of such plans; |
| adopt or implement any stockholder rights plan; |
| declare, set aside or pay any dividend or other distribution in respect of any of its capital stock other than as set forth in the next paragraph; |
| split, combine, subdivide, reclassify, redeem, purchase or otherwise acquire any shares of its capital stock, or any of its other securities; |
| increase the compensation of directors, officers or employees or otherwise increase employee benefits, grants or awards not required by any employee benefit plan other than: |
| as required by law; |
| under any existing employee benefit plan; |
| pursuant to the conversion of Pan Pacific securities as specified in the merger agreement; or |
| as otherwise disclosed by Pan Pacific in the merger agreement; |
| sell, dispose of or encumber any material properties or assets of Pan Pacific or any of its subsidiaries, provided that Pan Pacific may enter into certain bona fide leases with respect to tenants occupying 5,000 square feet or less, in the ordinary course of business consistent with past practice, without Kimcos consent; |
| acquire any real property or acquire any other material assets in an aggregate amount exceeding $1 million; |
| except as required under agreements at the time of signing, incur, assume or prepay any debt, guarantee the obligations of any other person, make any loans or investments in any other person other than between or with any wholly-owned subsidiaries, or enter into any keep well or other agreement to maintain the financial condition of another entity other than Pan Pacific or any of its wholly-owned subsidiaries; |
55
| terminate any employee if such termination would require Pan Pacific to make severance payments; |
| make, alter, revoke or rescind any material tax elections, settle any tax claims or amend any material tax return (except in each case in the ordinary course of business consistent with past practice or as required by law), file any income tax return that claims a deduction for or otherwise uses a net operating loss without the consent of Kimco (such consent not to be unreasonably withheld, conditioned or delayed) or make any change to any of its material methods of reporting income or deductions (except as may be required by applicable law); |
| pay, discharge or satisfy any claim, liability or obligation other than in the ordinary course of business; |
| other than in the ordinary course of business, waive any rights of substantial value or make any payment of any material liability before it comes due; |
| fail to maintain its existing insurance coverages or procure substitute insurance policies; |
| change its methods of accounting as in effect on December 31, 2005, unless required by generally accepted accounting principles or the SEC; |
| enter into, modify or terminate, or waive or assign any rights under, any material contract, except in the ordinary course of business and consistent with past practice; |
| take any action that would cause its representations or warranties set forth in the merger agreement not to be true and correct in all material respects; |
| enter into any agreement with any Pan Pacific affiliate which involves the transfer of consideration or has a financial impact on Pan Pacific, other than those agreements existing on the date of the merger agreement or as disclosed to Pan Pacific prior to the date of the merger agreement; |
| except as provided in an agreed-to budget, pay or commit to pay any expenses or make or commit to make any capital expenditures (other than capital expenditures for the repair or maintenance of capital assets), excluding capital expenditures made with funds (a) held in like kind escrows established prior to the execution of the merger agreement in accordance with Section 1031 of the Code or (b) obtained as proceeds from insurance policies due to the destruction, loss or impairment of capital assets; |
| compromise or settle any litigation or arbitration proceedings involving payments by Pan Pacific or its subsidiaries in excess of $200,000 per litigation or arbitration, or $1,000,000 in the aggregate; |
| correspond with any equity holder of OP Units concerning the merger without previously consulting Kimco and providing Kimco the opportunity to review and comment on any such correspondence; |
| waive the ownership limit set forth in Pan Pacifics charter for any person; or |
| enter into an agreement, contract, commitment or arrangement to do any of the foregoing, or to authorize, publicly recommend, publicly propose or publicly announce an intention to do any of the foregoing, except as expressly permitted in the merger agreement. |
Pan Pacific has also agreed to limit its ability to declare, set aside or pay any dividend. In the event that the closing date of the merger is prior to September 15, 2006, Pan Pacific may declare a regular quarterly cash dividend of up to $0.64 per share of Pan Pacific common stock, prorated to the amount of time that has passed between June 30, 2006 and the closing date. In the event the closing date is on or after September 15, 2006, Pan Pacific may declare a regular quarterly cash dividend of up to $0.64 per share of Pan Pacific common stock, to be paid on the earlier of September 29, 2006 and the closing date. In the event the closing date is after September 15, 2006 and prior to December 15, 2006 and Kimco elects to delay the closing in accordance with the merger agreement, Pan Pacific may declare a regular quarterly cash dividend of up to $0.64 per share of Pan Pacific common stock prorated to the number determined by dividing (A) the number of days between (x) the later of (I) the original closing date and (II) September 15, 2006 and (y) the closing date and (B) 92. In the event the closing date is on or after December 15, 2006, Pan Pacific may declare a regular quarterly cash dividend of
56
up to $0.64 per share of Pan Pacific common stock, to be paid on the earlier of December 29, 2006 and the closing date. In the event the closing date is after December 15, 2006 and Kimco elects to delay the closing, Pan Pacific may declare a regular quarterly cash dividend of up to $0.64 per share of Pan Pacific Common Stock prorated to the number determined by dividing (A) the number of days between (x) the later of (I) the original closing date and (II) December 15, 2006 and (y) the closing date and (B) 92. Pan Pacific may pay dividends to OP unit holders that are required to be made in connection with any dividends paid to holders of Pan Pacific common stock.
During the same period, if Kimco has elected to deliver a portion of the merger consideration in shares of its common stock and has not revoked such election, Kimco has also agreed that each of Kimco and its subsidiaries will not:
| adopt a plan of complete or partial liquidation or dissolution; |
| amend its organizational documents in a manner that would cause former Pan Pacific stockholders to be treated differently from other stockholders; |
| take any action, or fail to take any action, which would reasonably be expected to cause Kimco to fail to qualify as a REIT; or |
| undertake or authorize to take any of the foregoing. |
No Solicitation. Pan Pacific has agreed that it will not, directly or indirectly, through representatives or otherwise:
| solicit, encourage, initiate or participate in any negotiations, inquiries or discussions with respect to any acquisition proposal; |
| disclose, in connection with an acquisition proposal, any information or provide access to its properties, books or records, except as required by law or pursuant to a governmental request for information; |
| enter into or execute any agreement relating to an acquisition proposal; or |
| make or authorize any public statement, recommendation or solicitation in support of any acquisition proposal other than with respect to the merger, or as otherwise required by applicable law. |
However, in response to a bona fide, unsolicited, written acquisition proposal from a third party (that does not result from a breach of the no solicitation provision of the merger agreement), the board of directors of Pan Pacific may, and may authorize and permit its representatives to:
| provide such third party with nonpublic information; |
| otherwise facilitate any effort or attempt by a third party to make such acquisition proposal; |
| agree to or recommend or endorse any such acquisition proposal; |
| withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Kimco, its approval and recommendation of the merger and the merger agreement; and |
| participate in discussions and negotiations with such third party relating to such acquisition proposal |
if and only to the extent that:
| the board of directors of Pan Pacific believes in good faith (after consultation with its financial advisor and legal counsel) that such acquisition proposal if consummated would be a superior proposal; |
| the board of directors of Pan Pacific, after having consulted with and considered the advice of outside counsel, has reasonably determined in good faith that failure to take such action would result in a breach of its fiduciary duties to Pan Pacific or its stockholders under applicable law; and |
57
| the third party has entered into a confidentiality agreement pertaining to nonpublic information regarding Pan Pacific containing terms in the aggregate no more favorable to the third party than those in the confidentiality agreement between Pan Pacific and Kimco (including the standstill provision thereof). |
In the event the board of directors of Pan Pacific withdraws or modifies its approval of the merger, the merger will nevertheless be submitted to the Pan Pacific stockholders for their consideration and approval in accordance with Maryland law. For a period of not less than five business days after Pan Pacific delivers to Kimco a notice that it has received a superior proposal, Pan Pacific will and will cause its legal and financial advisors to, if requested by Kimco, negotiate in good faith with Kimco to revise the merger agreement so that the acquisition proposal that constituted a superior proposal no longer constitutes a superior proposal. In determining whether an acquisition proposal is a superior proposal, Pan Pacific must take into account any amendments to the merger agreement proposed by Kimco. Pan Pacific will not enter into any agreement implementing an acquisition proposal prior to the termination of the merger agreement.
Pan Pacific has agreed to notify Kimco as soon as practicable (but in any event within 24 hours) if an officer or director of Pan Pacific or if any of Pan Pacifics advisors receives any acquisition proposal or any request for nonpublic information in connection with an acquisition proposal or for access to Pan Pacifics properties, books or records by any person or entity that informs Pan Pacific that it is considering making, or has made, an acquisition proposal. The notice must be made orally and in writing and indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact and copies of any proposed agreement relating thereto. If the board of directors of Pan Pacific determines the acquisition proposal to be a superior proposal, Pan Pacific has agreed to contemporaneously furnish to Kimco copies of any proposed agreement relating to such proposal and all information it provides to the offeror and contemporaneously notify Kimco in writing of any oral or written changes to the terms and conditions of any acquisition proposal.
Acquisition proposal means any proposal, offer or inquiry from a third party for or with respect to the acquisition, directly or indirectly, of beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of assets, securities or ownership interests of or in Pan Pacific or any of its subsidiaries representing 10% or more of the consolidated assets of Pan Pacific and its subsidiaries taken as a whole, or of an equity interest representing a 10% or greater economic interest in Pan Pacific and such subsidiaries taken as whole, pursuant to a merger, consolidation or other business combination, sale of shares of capital stock, sale of assets, share exchange, liquidation, dissolution, recapitalization, tender offer, exchange offer or similar transaction with respect to either Pan Pacific or any of such subsidiaries. Any amendment to the financial or other terms of an acquisition proposal shall be treated as a new acquisition proposal for the purposes of these no solicitation provisions and require a new superior proposal notice if such new acquisition proposal is determined to be a superior proposal.
A superior proposal is an unsolicited bona fide written acquisition proposal (i) which the Pan Pacific board has determined in good faith, and in consultation with its legal and financial advisors, to be more favorable from a financial point of view to Pan Pacific and its stockholders than the merger, taking into account any amendments to the merger agreement proposed by Kimco; (ii) for which financing, to the extent required, is then firmly committed; and (iii) which, in the good faith reasonable judgment of the Pan Pacific board, is reasonably likely to be consummated on the timetable and terms proposed; provided that for the purposes of this definition, the references in the definition of acquisition proposal to 10% will be deemed references to 100%.
REIT Qualification. Each of Kimco and Pan Pacific has agreed to maintain its qualification as a real estate investment trust under the Code through the effective time of the merger. Pan Pacific will declare and pay a dividend to holders of its common stock to the extent necessary to enable Pan Pacific to make minimum aggregate dividend distributions needed to maintain its status as a REIT and avoid the payment of excise tax during its final taxable year (as if it ended on the closing date) or the previous taxable year.
58
Director and Officer Insurance and Indemnification. After the effective time of the merger, Pan Pacific will indemnify and hold harmless each present and former director and officer of Pan Pacific and its subsidiaries against any costs, expenses, judgments, fines, claims or liabilities pertaining to any matter existing or occurring at or prior to the effective time of the merger to the extent permitted under applicable law. For six years after the effective time of the merger, Pan Pacific will maintain in effect the policies of directors and officers liability insurance previously maintained by Pan Pacific or will enter into new policies with similar terms with respect to claims arising from facts that occurred on or prior to the effective time of the merger, including all claims arising out of the merger agreement, provided that Pan Pacific will not be required to spend more than 200% of the aggregate of Pan Pacifics current premiums to obtain this coverage.
Access to Information. Pan Pacific will provide Kimco and its agents and representatives with reasonable access, upon reasonable prior notice and during normal business hours, to personnel, properties, books, contracts, commitments and records and shall provide monthly financial reports and development reports and provide other information on request (subject to confidentiality obligations of third parties). If Kimco makes a stock election, it will provide Pan Pacific and its agents and representatives with reasonable access, upon reasonable prior notice during normal business hours, to its books and records. All non-public information received will be held in confidence.
Governmental Approvals. Kimco and Pan Pacific have agreed to promptly prepare and file all necessary documentation to obtain as promptly as practicable all approvals and authorizations of all third parties and governmental entities which are necessary to complete the merger.
Affiliate Agreements. No later than 45 days prior to the closing of the merger, Pan Pacific will provide a list of affiliates (as such term is defined by Rule 144 under the Securities Act of 1933) of Pan Pacific. Pan Pacific will notify Kimco regarding any changes in the identity of Pan Pacific affiliates prior to the closing date of the merger. Pan Pacific will use its reasonable best efforts to deliver or cause to be delivered to Kimco as promptly as practicable, but in no event later than 15 days prior to the effective time of the merger, an affiliate agreement from each of its affiliates.
Further Assurances and Actions; Obtaining Consents. Kimco and Pan Pacific agree to use their reasonable efforts to take all appropriate action to do all things necessary, proper or advisable on their part under applicable laws and regulations to complete and make effective the transactions contemplated by the merger agreement. In addition Pan Pacific has agreed to use its reasonable best efforts to obtain all material third party consents.
Stock Exchange Listing. If a stock election is made, Kimco will use its commercially reasonable efforts to list on the New York Stock Exchange, prior to the effective time of the merger the shares of Kimco common stock to be issued in the merger.
Conditions to Obligations to Complete the Merger
The obligations of the parties to complete the merger are subject to the following conditions:
| approval of the merger agreement by Pan Pacific stockholders; |
| absence of any statute, rule, regulation, judgment, decree, injunction or order precluding the consummation of the merger; and |
| receipt of governmental and regulatory approvals required to complete the merger. |
The obligations of Kimco to complete the merger are further conditioned on:
| accuracy of the representations and warranties of Pan Pacific, CT Operating Partnership, L.P. and Western/Pinecreek, L.P. (subject to materiality standards in the merger agreement); |
| compliance in all material respects by Pan Pacific with its covenants and agreements under the merger agreement; |
59
| absence of any governmental action as a result of the merger reasonably expected to have a material adverse effect on Kimco or Pan Pacific; and |
| Receipt of a tax opinion regarding Pan Pacifics REIT status. |
The obligations of Pan Pacific to complete the merger are further conditioned on:
| accuracy of representations and warranties of Kimco (subject to materiality standards in the merger agreement); |
| compliance in all material respects by Kimco with its covenants and agreements under the merger agreement; |
| absence of any governmental action as a result of the merger reasonably expected to result in legal action against a Pan Pacific director, officer or employee; and |
| absence of any governmental action as a result of the merger reasonably expected to have a material adverse effect on Kimco, but only if Kimco has made and not revoked a stock election. |
In addition, the following conditions also must be met if Kimco makes and does not revoke a stock election:
| effectiveness of the registration statement with respect to Kimco common stock; |
| NYSE listing approval for Kimco common stock to be issued; and |
| receipt of a tax opinion regarding Kimcos REIT status. |
Termination; Break-Up Fees and Expenses
Either Kimco or Pan Pacific can terminate the merger agreement:
| by mutual written consent; |
| if the merger has not been completed by January 9, 2007 (other than because of a breach of the merger agreement by the party seeking termination); |
| if an order, decree or injunction makes the merger illegal or prohibits the merger; or |
| if Pan Pacific has not received the requisite stockholder approval, provided that Pan Pacific cannot terminate for this reason if it breaches its obligations to recommend the merger agreement or its obligations related to timely calling the meeting. |
Kimco can also terminate the merger agreement:
| upon a material breach by Pan Pacific of any covenant or agreement contained in the merger agreement or if any representation or warranty of Pan Pacific becomes untrue in any material respect (except if such breach is capable of being cured by Pan Pacific, and Pan Pacific is attempting in good faith to cure the breach); or |
| upon the occurrence of any of the following: |
| Pan Pacifics board qualifies, withdraws or modifies its recommendation of the merger; |
| Kimco requests the Pan Pacific board to publicly reconfirm its recommendation and the board fails to do so within 10 business days; |
| Pan Pacifics board recommends to Pan Pacific stockholders an alternative acquisition, merger or similar transaction; |
| Pan Pacific fails to timely call and hold the special meeting; or |
| Pan Pacific materially breaches the no solicitation provisions of the merger agreement. |
60
Pan Pacific can also terminate the merger agreement upon a material breach by Kimco of any covenant or agreement contained in the merger agreement or if any representation or warranty of Kimco becomes untrue in any material respect (except if such breach is capable of being cured by Kimco, and Kimco is attempting in good faith to cure the breach).
Break-Up Fee
In the event that the merger agreement is terminated under the circumstances described below Pan Pacific will be obligated to pay Kimco a termination fee equal to $65.0 million less the amount of any expenses that have been previously paid to Kimco. If receipt of the break-up fee would cause Kimco to no longer qualify as a REIT, a portion of the break-up fee will be placed in escrow and would ultimately be forfeited if Kimco is not within three years able to receive the fee and maintain its REIT status.
Kimco is entitled to the break-up fee if the merger agreement is terminated because:
| Pan Pacific accepted a superior proposal; |
| the Pan Pacific board withdrew, conditioned or qualified its recommendation of the merger; |
| Kimco requested that the Pan Pacific board publicly reconfirm its recommendation of the merger but the Pan Pacific board failed to do so within 10 business days; |
| the Pan Pacific board recommended a competing proposal; |
| Pan Pacific failed to timely call and conduct the stockholders meeting; or |
| Pan Pacific breached the no solicitation provisions of the merger agreement in any material respect. |
Pan Pacific must pay Kimcos expenses, up to $11.0 million, if an acquisition proposal has been received by an officer or director of Pan Pacific or by its advisors or at the time of the termination of the merger agreement an acquisition proposal has been publicly proposed or publicly announced and the merger agreement has been terminated because:
| the mergers have not been completed within six months of signing; |
| Pan Pacific stockholders did not approve the merger; or |
| Pan Pacific materially breached the merger agreement such that a closing condition would not be satisfied. |
In addition, if within 12 months of any termination resulting in payment of Kimcos expenses, Pan Pacific completes an alternative transaction or announces an agreement for an alternative transaction, Pan Pacific will pay Kimco the break-up fee (less any expenses previously paid).
Kimco and Pan Pacific may amend the merger agreement at any time, but after approval of the merger by the Pan Pacific stockholders no amendment of the merger agreement may be made that by law requires further approval by the stockholders of Pan Pacific without such further approval.
61
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material United States federal income tax considerations of the merger to holders of Pan Pacific common stock who receive cash or Kimco common stock for their Pan Pacific shares pursuant to the merger. This summary is based on current law, is for general information only and is not tax advice. This summary is based on the Code, applicable Treasury Regulations, and administrative and judicial interpretations thereof, each as in effect as of the date hereof, all of which are subject to change or different interpretations, possibly with retroactive effect. Future legislation, Treasury Regulations, administrative interpretations and practices and/or court decisions may adversely affect the tax considerations contained in this discussion or the desirability of an investment in a REIT relative to other investments. In addition, the administrative interpretations and practices of the IRS include its practices and policies as expressed in private letter rulings which are not binding on the IRS, except with respect to the particular taxpayers who requested and received those rulings. This summary assumes that shares of Pan Pacific common stock are held as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). Kimco and Pan Pacific have not requested, and do not plan to request, any rulings from the IRS concerning the tax treatment of the merger or that Kimco has qualified as a REIT, and the statements in this proxy are not binding on the IRS or any court. No assurance can be provided that the tax considerations contained in this discussion will not be challenged by the IRS, or if challenged, will be sustained by a court. The summary does not address the tax considerations to any non-U.S. Holder (defined below) who actually or constructively owns (or has, during the five-year period ending on the effective date of the merger, owned) 5% or more of Pan Pacific common stock. Also, this summary does not address all of the tax considerations that may be relevant to particular holders of Pan Pacific common stock (or Kimco common stock received for Pan Pacific shares pursuant to the merger) in light of their personal circumstances, or to other types of holders, including, without limitation:
| banks, insurance companies or other financial institutions; |
| broker-dealers; |
| traders; |
| expatriates; |
| tax-exempt organizations; |
| persons who are subject to alternative minimum tax; |
| persons who hold their shares of Pan Pacific or Kimco common stock as a position in a straddle or as part of a hedging, conversion or other risk-reduction transaction; |
| persons deemed to sell their shares of Pan Pacific or Kimco common stock under the constructive sale provisions of the Code; |
| United States persons that have a functional currency other than the United States dollar; |
| except to the extent specifically discussed below, non-U.S. Holders (as defined below); |
| partnerships or other entities treated as partnerships for United States federal income tax purposes and partners in such partnerships; |
| persons who acquired their shares of Pan Pacific common stock upon the exercise of stock options or otherwise as compensation; or |
| persons who acquired their shares of Kimco common stock other than in partial consideration for Pan Pacific shares pursuant to the merger. |
In addition, this discussion does not address any state, local or foreign tax consequences of the merger. You are urged to consult your tax advisors regarding the specific tax considerations to you of the merger and Kimcos election to be taxed as a REIT.
For purposes of this discussion, a U.S. Holder means a holder of Pan Pacific common stock, or where applicable, Kimco common stock, that is:
| a citizen or resident of the United States; |
62
| a corporation or an entity treated as a corporation for United States federal income tax purposes created or organized in or under the laws of the United States, any State or the District of Columbia; |
| an estate, the income of which is subject to United States federal income taxation regardless of its source; or |
| a trust (a) the administration over which a United States court is able to exercise primary supervision and (b) all of the substantial decisions of which one or more United States persons have the authority to control, and certain other trusts considered U.S. Holders for federal income tax purposes. |
A non-U.S. Holder is a holder of Pan Pacific common stock, or where applicable, Kimco common stock, that is not a U.S. Holder.
Under the merger agreement, KRC Acquisition Inc. will merge with and into Pan Pacific, and Pan Pacific will survive the transaction; provided however, that Kimco has the option under the merger agreement to change the direction of the merger, in which event KRC Acquisition Inc. would be the surviving corporation. If Pan Pacific is the surviving corporation in the merger, then for United States federal income tax purposes, Pan Pacific stockholders will be treated as if they had sold their shares of Pan Pacific common stock in exchange for the merger consideration. If Kimco elects to have KRC Acquisition Inc. survive the merger, then for United States federal income tax purposes, the merger will be treated as if Pan Pacific had sold all of its assets to KRC Acquisition Inc. and then made a liquidating distribution of the merger consideration to the Pan Pacific stockholders in exchange for their shares of Pan Pacific common stock.
Consequences of the Merger to U.S. Holders
Subject to the discussion in the following paragraph relating to a possible pre-merger distribution of the net proceeds attributable to the possible sale of certain Pan Pacific assets, the direction of the merger should not affect the U.S. federal income tax treatment of U.S. Holders. A U.S. Holders receipt of cash and possibly Kimco common stock in exchange for shares of Pan Pacific common stock pursuant to the merger will be a taxable transaction for United States federal income tax purposes. In general, a U.S. Holder will recognize capital gain or loss as a result of the merger measured by the difference, if any, between the value of the merger consideration received per Pan Pacific share and the holders adjusted tax basis in that share. Such gain or loss will constitute long-term capital gain or loss if the U.S. Holder held such share for more than one year as of the effective time of the merger. However, if a U.S. Holder recognizes loss upon the receipt of the merger consideration in exchange for shares of Pan Pacific common stock that it has held for six months or less, at the effective time of the merger, after applying certain holding period rules, the loss recognized will be treated as a long-term capital loss to the extent such holder received distributions from Pan Pacific which were required to be treated as long-term capital gains or such stockholders share of any designated retained capital gains of Pan Pacific. Long-term capital gains of noncorporate taxpayers generally are taxable at a maximum federal income tax rate of 15%. Capital gains of corporate stockholders generally are taxable at the regular tax rates applicable to corporations. The deductibility of capital losses may be subject to limitations. In addition, the IRS has the authority to prescribe, but has not yet prescribed, regulations that would apply a tax rate of 25% to a portion of capital gain realized by a noncorporate stockholder on the sale of REIT shares that would correspond to the REITs unrecaptured Section 1250 gain.
Under the merger agreement, Kimco may elect to cause Pan Pacific to dispose of certain assets in one or more taxable transactions immediately prior to the closing of the merger and then distribute the net proceeds of such sales to Pan Pacific stockholders. Any such distribution would reduce the merger consideration by an equivalent amount. Pan Pacific expects to treat any such distributions as dividends for United States federal income tax purposes to the extent its current and accumulated earnings and profits are allocable to such distributions, and a portion of such distributions may be designated as capital gain dividends. Distributions that Pan Pacific properly designates as capital gain dividends will be taxable to its taxable U.S. Holders as a gain from the sale or disposition of a capital asset, to the extent that such gain does not exceed Pan Pacifics actual net
63
capital gain for the taxable year. Capital gain dividends may be taxable to non-corporate U.S. Holders at a 15% or 25% rate. U.S. Holders that are corporations may, however, be required to treat up to 20% of some capital gain dividends as ordinary income. Pan Pacific currently expects to allocate its capital gain dividends for its taxable year that includes the merger to its stockholders in proportion to the dividends (as defined for federal income tax purposes) they receive with respect to that year. To the extent that Pan Pacifics distributions for its taxable year that includes the merger, including this distribution of net sales proceeds, exceed Pan Pacifics current and accumulated earnings and profits for such year, Pan Pacific intends to take the position that the distributions constitute a tax-free return of capital and reduce the stockholders tax basis in their Pan Pacific common stock (to the extent thereof), with any excess taxable as gain on the sale of Pan Pacific common stock.
Consequences of the Merger to Non-U.S. Holders
Generally, a non-U.S. Holders gain or loss from the merger will be determined in the same manner as that of a U.S. Holder. The United States federal income tax consequences of the merger to a non-U.S. Holder will depend on various factors, including whether the receipt of the merger consideration is taxed under the provisions of Foreign Investment in Real Property Tax Act of 1980, or FIRPTA, governing sales of REIT shares or whether the receipt of the merger consideration is taxed under the provisions of FIRPTA governing distributions from REITs. The provisions governing distributions from REITs could apply because, for United States federal income tax purposes, as described above, if Kimco elects to change the direction of the merger such that KRC Acquisition Inc. is the survivor, the merger will be treated as a sale of Pan Pacifics assets followed by a liquidating distribution from Pan Pacific to its common stockholders of the merger consideration. If KRC Acquisition Inc. survives the merger, current law is unclear as to which provisions should apply to the payment of the merger consideration, and both sets of provisions are discussed below. However, to the extent Pan Pacific distributes to non-U.S. Holders the net proceeds from any asset sales immediately prior to the merger, Pan Pacific intends to treat such payment as a distribution to non-U.S. Holders. In general, the provisions governing the taxation of distributions by REITs are less favorable to non-U.S. Holders, and non-U.S. Holders should consult their tax advisors regarding the possible application of those provisions.
Taxable Sale of Shares. Subject to the discussion of backup withholding and of distribution of gain from the disposition of U.S. real property interests below, if Pan Pacific is the surviving corporation in the merger, then the merger will be treated as a taxable sale of shares of Pan Pacific common stock, and a non-U.S. Holder should not be subject to United States federal income taxation on any gain or loss from the merger unless: (i) the gain is effectively connected with the non-U.S. Holders conduct of a trade or business in the United States; (ii) the non-U.S. Holder is an individual present in the United States for 183 days or more in the taxable year of the merger and certain other requirements are met; or (iii) such shares of common stock constitute a U.S. real property interest under FIRPTA. As described above, while the current law is unclear, this same treatment may apply if KRC Acquisition Inc. is the survivor in the merger.
A non-U.S. Holder whose gain is effectively connected with the conduct of a trade or business in the United States will be subject to United States federal income tax on such gain on a net basis in the same manner as a U.S. Holder. In addition, a non-U.S. Holder that is a corporation may be subject to the 30% branch profits tax on such effectively connected gain.
A non-U.S. Holder who is an individual present in the United States for 183 days or more in the taxable year of the merger and who meets certain other requirements will be subject to a flat 30% tax on the gain derived from the merger, which may be offset by United States source capital losses. In addition, the non-U.S. Holder may be subject to applicable alternative minimum taxes.
If a non-U.S. Holders shares of Pan Pacific common stock constitute a U.S. real property interest under FIRPTA, such holder will be subject to United States federal income tax on the gain recognized in the merger on a net basis in the same manner as a U.S. Holder. A non-U.S. Holders shares of Pan Pacific common stock generally will not constitute a U.S. real property interest if (i) Pan Pacific is a domestically controlled qualified investment entity at the effective time of the merger, or (ii) the non-U.S. Holder holds 5% or less of the total fair
64
market value of Pan Pacifics common stock at all times during the shorter of (a) the five-year period ending with the effective date of the merger and (b) the non-U.S. Holders holding period for the shares. A qualified investment entity includes a REIT. Assuming Pan Pacific qualifies as a REIT, Pan Pacific will be a domestically controlled qualified investment entity at the effective time of the merger if non-U.S. Holders held directly or indirectly less than 50% in value of Pan Pacifics stock at all times during the five-year period ending with the effective time of the merger. No assurances can be given that the actual ownership of Pan Pacifics common stock has been or will be sufficient for Pan Pacific to qualify as a domestically controlled qualified investment entity at the effective time of the merger.
Distribution of Gain from the Disposition of U.S. Real Property Interests. The tax treatment described above assumes that the receipt of the merger consideration will be treated as a sale or exchange of shares of Pan Pacific common stock for purposes of FIRPTA. If Kimco elects to reverse the direction of the merger such that KRC Acquisition Inc. survives the transaction, then it is possible that the IRS may assert that the merger consideration received by a non-U.S. Holder is subject to tax under Section 897(h)(1) of the Code as a distribution from Pan Pacific that is attributable to gain from the deemed sale of Pan Pacifics U.S. real estate assets in the merger, and not as a sale of shares of its common stock. In addition, Pan Pacific intends to treat any pre-merger distribution attributable to its sale of real estate assets at Kimcos request as subject to tax under Section 897(h)(1) of the Code. Accordingly, such distributions would be taxed under FIRPTA, unless a special exception applies (the 5% Exception, discussed below). If the distributions were taxed under FIRPTA, the gain recognized by a non-U.S. Holder generally would be subject to United States federal income tax on a net basis to the extent attributable to gain from the sale (or deemed sale) of Pan Pacifics real estate assets, 35% withholding would apply and a corporate non-U.S. Holder could be subject to the branch profits tax on such FIRPTA gain. On the other hand, if the 5% Exception applies, the FIRPTA tax would not; however, there is some risk that the merger consideration could be treated as an ordinary dividend distribution from Pan Pacific, in which case the merger consideration received by such non-U.S. Holder would be subject to United States federal income tax at a 30% rate. A non-U.S. Holder of Pan Pacific shares should be eligible for the 5% Exception if the non-U.S. Holder did not own more than 5% of the Pan Pacific common stock at any time during the one-year period ending on the date of the distribution. In the event that the 5% Exception applies to a non-U.S. Holder, Pan Pacific intends to treat any pre-merger distribution to such holder attributable to Pan Pacifics sale of real estate assets, and any distribution attributable to gain from the deemed sale of Pan Pacifics assets in the merger if Kimco elects to reverse the direction of the merger, as subject to United States federal income tax at a 30% rate.
Income Tax Treaties. If a non-U.S. Holder is eligible for treaty benefits under an income tax treaty with the United States, the non-U.S. Holder may be able to reduce or eliminate certain of the United States federal income tax consequences discussed above, such as the branch profits tax. Non-U.S. Holders should consult their tax advisor regarding possible relief under an applicable income tax treaty.
U.S. Withholding Tax Under FIRPTA. If Pan Pacific is the surviving corporation in the merger, Kimco and Pan Pacific do not intend to withhold any portion of the merger consideration pursuant to FIRPTA. As described above, if Kimco elects to reverse the direction of the merger such that KRC Acquisition Inc. survives the transaction, it is unclear whether the receipt of the merger consideration will be treated as a sale of Pan Pacific common stock or as a distribution from Pan Pacific that is attributable to gain from the deemed sale of Pan Pacifics assets in the merger. Accordingly, if Kimco elects to reverse the direction of the merger, Pan Pacific and Kimco intend to withhold United States federal income tax at a rate of 35% from the portion of the merger consideration that is attributable to gain from the deemed sale of U.S. real property interests and paid to a non-U.S. Holder unless such holder is eligible for the 5% Exception. In addition, Pan Pacific intends to withhold at a 35% rate with respect to any pre-merger distribution to non-U.S. Holders attributable to Pan Pacifics sale of real estate assets, except to the extent the 5% Exception applies to a non-U.S. Holder. In each case, if the 5% Exception applies, Kimco and Pan Pacific intend to withhold at a 30% rate.
A non-U.S. Holder may be entitled to a refund or credit against the holders United States tax liability, if any, with respect to any amount withheld pursuant to FIRPTA, provided that the required information is
65
furnished to the IRS on a timely basis. In addition, Pan Pacific and Kimco, as applicable, will consider a request by a Non-U.S. Holder for reduced withholding if the Non-U.S. Holder establishes an exemption from or reduction in withholding. Non-U.S. Holders should consult their tax advisor regarding withholding tax considerations.
Information Reporting and Backup Withholding
Information reporting and backup withholding may apply to payments made in connection with the merger. Backup withholding will not apply, however, to a holder who (a) in the case of a U.S. Holder, furnishes a correct taxpayer identification number and certifies that it is not subject to backup withholding on the substitute IRS Form W-9 or successor form, (b) in the case of a non-U.S. Holder, furnishes an applicable IRS Form W-8 or successor form, or (c) is otherwise exempt from backup withholding. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against such holders United States federal income tax liability provided the required information is furnished to the IRS.
THE FOREGOING DISCUSSION OF UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS IS FOR GENERAL INFORMATION PURPOSES ONLY, DOES NOT PURPORT TO BE A COMPLETE DESCRIPTION OF THE POTENTIAL TAX CONSIDERATIONS RELATING TO THE MERGER (AND POSSIBLE PRE-MERGER DISTRIBUTION) AND IS NOT TAX ADVICE. HOLDERS OF PAN PACIFIC COMMON STOCK ARE URGED TO CONSULT THEIR TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THESE TRANSACTIONS, INCLUDING THE APPLICABILITY OF UNITED STATES FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.
Kimcos Qualification for Taxation as a REIT
The following is a summary of the federal income tax considerations related to Kimcos REIT election which are anticipated to be material to holders of Kimco common stock received in partial consideration for their Pan Pacific common stock pursuant to the merger.
You are advised to consult your own tax advisor regarding the tax consequences to you of the acquisition, ownership and sale of Kimco common stock received pursuant to the merger, including the federal, state, local, foreign and other tax consequences, Kimcos election to be taxed as a REIT for federal income purposes, and potential changes in the tax laws.
General. Kimco elected to be taxed as a REIT under Sections 856 through 860 of the Code, commencing with its taxable year beginning January 1, 1992. Kimco believes that it has been organized and has operated in a manner which allows it to qualify for taxation as a REIT under the Code commencing with its taxable year beginning January 1, 1992. Kimco intends to continue to be organized and operate in this manner. However, qualification and taxation as a REIT depend upon Kimcos ability to meet the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution levels and diversity of stock ownership. Accordingly, no assurance can be given that Kimco has been organized and has operated, or will continue to be organized and operate, in a manner so as to qualify or remain qualified as a REIT. See Failure to Qualify.
The sections of the Code and the corresponding Treasury Regulations that relate to the qualification and operation of a REIT are highly technical and complex. The following sets forth the material aspects of the sections of the Code that govern the federal income tax treatment of a REIT. This summary is qualified in its entirety by the applicable Code provisions, rules and regulations promulgated thereunder, and administrative and judicial interpretations thereof.
As a condition to the closing of the merger in the case that Kimco common stock is delivered as part of the merger consideration, Kimcos tax counsel is required to render an opinion to Pan Pacific to the effect that, commencing with Kimcos taxable year which began January 1, 1992, Kimco has been organized and has
66
operated in conformity with the requirements for qualification and taxation as a REIT, and its proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code. It must be emphasized that this opinion will be based on various assumptions and representations to be made by Kimco as to factual matters, including representations to be made in a factual certificate to be provided by one of its officers. Kimcos tax counsel will have no obligation to update its opinion subsequent to its date. In addition, this opinion will be based upon Kimcos factual representations set forth in this proxy statement. Moreover, Kimcos qualification and taxation as a REIT depends upon its ability to meet the various qualification tests imposed under the Code discussed below, including through actual annual operating results, asset composition, distribution levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Kimcos tax counsel. Accordingly, no assurance can be given that Kimcos actual results of operation in any particular taxable year will satisfy those requirements. See Failure to Qualify. Further, the anticipated income tax treatment described in this proxy statement may be changed, perhaps retroactively, by legislative, administrative or judicial action at any time.
If Kimco qualifies for taxation as a REIT, Kimco generally will not be required to pay United States federal corporate income taxes on its net income that is currently distributed its stockholders. Kimco will be required to pay United States federal income tax, however, as follows:
| Kimco will be required to pay tax at regular corporate rates on any undistributed REIT taxable income, including undistributed net capital gains. |
| Kimco may be required to pay the alternative minimum tax on its items of tax preference. |
| If Kimco has (1) net income from the sale or other disposition of foreclosure property which is held primarily for sale to customers in the ordinary course of business or (2) other nonqualifying income from foreclosure property, Kimco will be required to pay tax at the highest corporate rates on this income. Foreclosure property is generally defined as property acquired by foreclosure or after a default on a loan secured by the property or a lease of the property. |
| Kimco will be required to pay a 100% tax on any net income from prohibited transactions. Prohibited transactions are, in general, sales or other dispositions of property, other than foreclosure property, held primarily for sale to customers in the ordinary course of business. |
| If Kimco fails to satisfy the 75% gross income test or the 95% gross income test, as described below, but has otherwise maintained its qualification as a REIT, Kimco will be required to pay a 100% tax on an amount equal to (1) the gross income attributable to the greater of (a) the amount by which 75% of Kimcos gross income exceeds the amount qualifying under the 75% gross income test described below and (b) the amount by which 95% (90% for taxable years ending on or prior to December 31, 2004) of its gross income exceeds the amount qualifying under the 95% gross income test described below, multiplied by (2) a fraction intended to reflect Kimcos profitability. |
| If Kimco fails to satisfy any of the REIT asset tests (other than a de minimis failure of the 5% and 10% asset tests), as described below, due to reasonable cause and not due to willful neglect and Kimco nonetheless maintains its REIT qualification because of specified cure provisions, Kimco will be required to pay a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the nonqualifying assets that caused it to fail such test. |
| If Kimco fails to satisfy any provision of the Code that would result in its failure to qualify as a REIT (other than a violation of the REIT gross income tests or certain violations of asset tests described below) and the violation is due to reasonable cause, Kimco may retain its REIT qualification but will be required to pay a penalty of $50,000 for each such failure. |
| If Kimco fails to distribute during each calendar year at least the sum of (1) 85% of its REIT ordinary income for such taxable year, (2) 95% of its REIT capital gain net income for such year, and (3) any undistributed taxable income from prior periods, Kimco will be required to pay a 4% excise tax on the excess of that required distribution over the amounts actually distributed. |
67
| If Kimco acquires any asset from a corporation which is or has been a C corporation in a transaction in which the basis of the asset in Kimcos hands is determined by reference to the basis of the asset in the hands of the C corporation, and Kimco subsequently recognizes gain on the disposition of the asset during the ten-year period beginning on the date it acquired the asset, then it will be required to pay tax at the highest regular corporate tax rate on this gain to the extent of the excess of (a) the fair market value of the asset over (b) Kimcos adjusted basis in the asset, in each case determined as of the date it acquired the asset. A C corporation is generally defined as a corporation required to pay full corporate level tax. The results described in this paragraph with respect to the recognition of gain assume that Kimco or the C corporation, as applicable, have made or refrained from making and the C corporation will refrain from making a timely election under the relevant Treasury Regulations in order to obtain the results described in this paragraph with respect to the recognition of gain. |
| Kimco will be subject to a 100% penalty tax on any redetermined rents, redetermined deductions or excess interest. In general, redetermined rents are rents from real property that are overstated as a result of services furnished by a taxable REIT subsidiary of Kimco to any of its tenants. See Taxable REIT Subsidiaries. Redetermined deductions and excess interest represent amounts that are deducted by a taxable REIT subsidiary of Kimco for amounts paid to Kimco that are in excess of the amounts that would have been deducted based on arms length negotiations. |
Requirements for Qualification. The Code defines a REIT as a corporation, trust or association:
(1) | that is managed by one or more trustees or directors, |
(2) | that issues transferable shares or transferable certificates to evidence beneficial ownership, |
(3) | that would be taxable as a domestic corporation, but for Sections 856 through 860 of the Code, |
(4) | that is not a financial institution or an insurance company within the meaning of the Code, |
(5) | that is beneficially owned by 100 or more persons, |
(6) | not more than 50% in value of the outstanding stock of which is owned, directly or constructively, by five or fewer individuals, including specified entities, during the last half of each taxable year, and |
(7) | that meets other tests, described below, regarding the nature of its income and assets and the amount of its distributions. |
The Code provides that conditions (1) to (4) must be met during the entire taxable year and that condition (5) must be met during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. Conditions (5) and (6) do not apply until after the first taxable year for which an election is made to be taxed as a REIT. For purposes of condition (6), pension funds and other specified tax-exempt entities generally are treated as individuals, except that a look-through exception applies to pension funds.
Kimco believes that it has been organized and operated in a manner that has allowed it to satisfy conditions (1) through (7) inclusive, during the relevant time periods. In addition, Kimcos charter provides, and the articles supplementary for any series of preferred stock will provide, for restrictions regarding ownership and transfer of Kimcos stock, which restrictions are intended to assist it in continuing to satisfy the share ownership requirements described in (5) and (6) above. These restrictions, however, may not ensure that Kimco will, in all cases, be able to satisfy the share ownership requirements described in (5) and (6) above. If Kimco fails to satisfy these share ownership requirements, except as provided in the next sentence, its status as a REIT will terminate. If, however, Kimco complies with the rules contained in the applicable Treasury Regulations requiring it to attempt to ascertain the actual ownership of its shares, and it does not know, and would not have known through the exercise of reasonable diligence, that it failed to meet the requirement set forth in condition (6) above, it will be treated as having met this requirement. See the section below entitled Failure to Qualify.
68
In addition, Kimco may not maintain its status as a REIT unless its taxable year is the calendar year. Kimco has and will continue to have a calendar taxable year.
Ownership of Qualified REIT Subsidiaries and Interests in Limited Liability Companies and Partnerships. Kimco owns and operates a number of properties through subsidiaries. A corporation which is a qualified REIT subsidiary shall not be treated as a separate corporation, and all assets, liabilities, and items of income, deduction, and credit of a qualified REIT subsidiary shall be treated as assets, liabilities and items of the REIT. Thus, in applying the requirements described herein, Kimcos qualified REIT subsidiaries will be ignored, and all assets, liabilities and items of income, deduction, and credit of those subsidiaries will be treated as Kimcos assets, liabilities and items. A qualified REIT subsidiary is not required to pay United States federal income tax, and Kimcos ownership of the stock of a qualified REIT subsidiary does not violate the restrictions on ownership of securities as described below under Asset Tests. Kimco has received a ruling from the IRS to the effect that all of the subsidiaries that were held by it prior to January 1, 1992, the effective date of Kimcos election to be taxed as a REIT, were qualified REIT subsidiaries upon the effective date of such REIT election. Moreover, with respect to each Kimco subsidiary formed subsequent to January 1, 1992 and prior to January 1, 1998, and which Kimco treats as a qualified REIT subsidiary, Kimco has owned 100% of the stock of that subsidiary at all times during the period that subsidiary has been in existence. For tax years beginning on or after January 1, 1998, any corporation, other than a taxable REIT subsidiary, wholly owned by a REIT is permitted to be treated as a qualified REIT subsidiary regardless of whether that subsidiary has always been owned by the REIT.
In the case of a REIT which is a partner in a partnership or a member in a limited liability company treated as a partnership for federal income tax purposes, the REIT will be deemed to own its proportionate share of the assets of the partnership or limited liability company, as the case may be, based on its interest in partnership capital, subject to special rules relating to the 10% REIT asset test described below. Also, the REIT will be deemed to be entitled to its proportionate share of the income of that entity. The character of the assets and gross income of the partnership or limited liability company will retain the same character in the hands of the REIT for purposes of Section 856 of the Code, including satisfying the gross income tests and the asset tests described below. Thus, Kimcos proportionate share of the assets, liabilities and items of income of the partnerships and limited liability companies treated as partnerships for federal income tax purposes in which it is a partner or member will be treated as its assets, liabilities and items of income for purposes of applying the requirements described in this proxy statement.
Ownership of Interests in Taxable REIT Subsidiaries. A taxable REIT subsidiary is a corporation other than a REIT in which a REIT directly or indirectly holds stock, and that has made a joint election with the REIT to be treated as a taxable REIT subsidiary. A taxable REIT subsidiary also includes any corporation other than a REIT with respect to which a taxable REIT subsidiary owns securities possessing more than 35% of the total voting power or value of the outstanding securities of such corporation. Other than some activities relating to lodging and health care facilities, a taxable REIT subsidiary may generally engage in any business, including the provision of customary or noncustomary services to tenants of its parent REIT.
A taxable REIT subsidiary is subject to federal income tax, and state and local income tax where applicable, as a regular C corporation. In addition, sections of the Code which apply to tax years beginning after December 31, 2000 generally intended to insure that transactions between a REIT and its taxable REIT subsidiary occur at arms length and on commercially reasonable terms, include a provision that may prevent a taxable REIT subsidiary from deducting interest on debt funded directly or indirectly by its parent REIT if certain tests regarding the taxable REIT subsidiarys debt to equity ratio and interest expense are not satisfied. See Asset Tests. A REITs ownership of securities of taxable REIT subsidiaries will not be subject to the 10% or 5% asset test described below, and their operations will be subject to the provisions described above. See Asset Tests.
As a result of the modifications to the sections of the Code which are described above and which are effective for taxable years beginning after December 31, 2000, Kimco modified its ownership of Kimco Realty
69
Service, Inc. (the Service Company). Effective January 1, 2001, Kimco made a joint election with the Service Company to treat the Service Company as a taxable REIT subsidiary. In addition, effective January 1, 2001, Kimco contributed the note that was issued to it from the Service Company to the capital of the Service Company and acquired 100% of the voting stock of the Service Company. Thus, Kimco currently owns 100% of the stock of the Service Company and there is no debt outstanding between the Service Company and Kimco. In addition, Kimco currently holds an interest in other taxable REIT subsidiaries and may acquire securities in additional taxable REIT subsidiaries in the future.
Income Tests. Kimco must satisfy two gross income requirements annually to maintain its qualification as a REIT:
| First, in each taxable year Kimco must derive directly or indirectly at least 75% of its gross income, excluding gross income from prohibited transactions, from (a) investments relating to real property or mortgages on real property, including rents from real property, dividends from other qualifying REITs and, in some circumstances, interest or (b) some type of temporary investments. |
| Second, in each taxable year Kimco must derive at least 95% of its gross income, excluding gross income from prohibited transactions, from (a) the real property investments described above, (b) dividends, interest and gain from the sale or disposition of stock or securities or (c) from any combination of the foregoing. |
For these purposes, the term interest generally does not include any amount received or accrued, directly or indirectly, if the determination of that amount depends in whole or in part on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term interest solely by reason of being based on a fixed percentage or percentages of receipts or sales.
Rents Kimco receives from a tenant will qualify as rents from real property in satisfying the gross income requirements for a REIT described above only if the following conditions are met:
| First, the amount of rent must not be based in whole or in part on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term rents from real property solely by reason of being based on a fixed percentage or percentages of receipts or sales. |
| Second, Kimco, or an actual or constructive owner of 10% or more of its capital stock, must not actually or constructively own 10% or more of the interests in the assets or net profits of the tenant, or, if the tenant is a corporation, 10% or more of the voting power or value of all classes of stock of the tenant. Rents received from such tenant that is a taxable REIT subsidiary, however, will not be excluded from the definition of rents from real property if at least 90% of the space at the property to which the rents relate is leased to third parties, and the rents paid by the taxable REIT subsidiary are substantially comparable to rents paid by Kimcos other tenants for comparable space. Whether rents paid by Kimcos taxable REIT subsidiary are substantially comparable to rents paid by its other tenants is determined at the time the lease with the taxable REIT subsidiary is entered into, extended, and modified, if such modification increases the rents due under such lease. Notwithstanding the foregoing, however, if a lease with a controlled taxable REIT subsidiary is modified and such modification results in an increase in the rents payable by such taxable REIT subsidiary, any such increase will not qualify as rents from real property. For purposes of this rule, a controlled taxable REIT subsidiary is a taxable REIT subsidiary in which Kimco owns stock possessing more than 50% of the voting power or more than 50% of the total value of the outstanding stock of such taxable REIT subsidiary. |
| Third, rent attributable to personal property, leased in connection with a lease of real property, is not greater than 15% of the total rent received under the lease. If this condition is not met, then the portion of the rent attributable to personal property will not qualify as rents from real property. |
| Finally, Kimco generally must not operate or manage its property or furnish or render services to its tenants, subject to a 1% de minimis exception, other than through an independent contractor from whom Kimco derives no revenue. Kimco may, however, directly perform services that are usually or customarily rendered in connection with the rental of space for occupancy only and are not otherwise |
70
considered rendered to the occupant of the property. In addition, Kimco may employ a taxable REIT subsidiary which may be wholly or partially owned by it to provide, on an arms length basis, both customary and noncustomary services to Kimcos tenants without causing the rent it receives from those tenants to fail to qualify as rents from real property. Any amounts Kimco receives from a taxable REIT subsidiary with respect to the taxable REIT subsidiarys provision of noncustomary services will, however, be nonqualified income under the 75% gross income test and, except to the extent received through the payment of dividends, the 95% gross income test. |
Kimco has received a ruling from the IRS providing that the performance of the types of services provided by it will not cause the rents received with respect to those leases to fail to qualify as rents from real property. In addition, Kimco generally does not intend to receive rent which fails to satisfy any of the above conditions. Notwithstanding the foregoing, Kimco may have taken and may continue to take some of the actions set forth above to the extent it believes those actions will not, based on the advice of its tax counsel, jeopardize its status as a REIT.
Income Kimco receives that is attributable to the rental of parking spaces at its properties will constitute rents from real property for purposes of the REIT gross income tests if certain services provided with respect to the parking spaces are performed by independent contractors from whom Kimco derives no revenue, either directly or indirectly, or by a taxable REIT subsidiary, and certain other conditions are met. Kimco believes that the income it receives that is attributable to parking spaces meets these tests and, accordingly, will constitute rents from real property for purposes of the REIT gross income tests.
From time to time, Kimco enters into hedging transactions with respect to one or more of its assets or liabilities. Kimcos hedging activities may include entering into interest rate swaps, caps, and floors, options to purchase these items, and futures and forward contracts. Any income Kimco derives from a hedging transaction will be nonqualifying income for purposes of the 75% gross income test. Except to the extent provided by Treasury Regulations, however, income from a hedging transaction, including gain from the sale or disposition of such a transaction, entered into prior to January 1, 2005 will be qualifying income for purposes of the 95% gross income test, but only to the extent that the transaction hedges indebtedness incurred or to be incurred by Kimco to acquire or carry real estate. Income from such a hedging transaction entered into on or after January 1, 2005 that is clearly identified as such as specified in the Code will not constitute gross income for purposes of the 95% gross income test, and therefore will be exempt from this test. The term hedging transaction, as used above, generally means any transaction Kimco enters into in the normal course of its business primarily to manage risk of interest rate changes or fluctuations with respect to borrowings made or to be made by Kimco.
To the extent that Kimco hedges with other types of financial instruments, the income from those transactions is not likely to be treated as qualifying income for purposes of the gross income tests. Kimco intends to structure any hedging transactions in a manner that does not jeopardize its status as a REIT. To the extent Kimcos taxable REIT subsidiary pays dividends, such dividend income will qualify under the 95%, but not the 75%, REIT gross income test. Kimco intends to monitor the amount of the dividend and other income from its taxable REIT subsidiaries and Kimco intends to take actions to keep this income, and any other nonqualifying income, within the limitations of the REIT income tests. While Kimco expects these actions will prevent a violation of the REIT income tests, it cannot guarantee that such actions will in all cases prevent such a violation.
If Kimco fails to satisfy one or both of the 75% or 95% gross income tests for any taxable year, it may nevertheless qualify as a REIT if it is entitled to relief under the Code. Commencing with its taxable year beginning January 1, 2005, Kimco may avail itself of the relief provisions if:
| following its identification of the failure to meet the 75% or 95% gross income tests for any taxable year, Kimco files a schedule with the IRS setting forth each item of its gross income for purposes of the 75% or 95% gross income tests for such taxable year in accordance with Treasury Regulations to be issued; and |
| the failure to meet these tests was due to reasonable cause and not due to willful neglect. |
71
It is not possible, however, to state whether in all circumstances Kimco would be entitled to the benefit of these relief provisions. As discussed above under General, even if these relief provisions apply, a tax would be imposed with respect to Kimcos nonqualifying income. Kimco may not always be able to comply with the gross income tests for REIT qualification despite periodic monitoring of its income.
Prohibited Transaction Income. Any gain that Kimco realizes on the sale of any property held as inventory or otherwise held primarily for sale to customers in the ordinary course of business will be treated as income from a prohibited transaction that is subject to a 100% penalty tax. This prohibited transaction income may also have an adverse effect upon Kimcos ability to satisfy the income tests for qualification as a REIT. Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of business is a question of fact that depends on all the facts and circumstances with respect to the particular transaction. Kimco holds its properties for investment with a view to long-term appreciation, it is engaged in the business of acquiring, developing, owning and operating its properties and it makes such occasional sales of the properties as are consistent with its investment objectives. There can be no assurance, however, that the IRS might not contend that one or more of those sales is subject to the 100% penalty tax.
Penalty Tax. Any redetermined rents, redetermined deductions or excess interest that Kimco generates will be subject to a 100% penalty tax. In general, redetermined rents are rents from real property that are overstated as a result of services furnished by a taxable REIT subsidiary to any of Kimcos tenants, and redetermined deductions and excess interest represent amounts that are deducted by a taxable REIT subsidiary for amounts paid to Kimco that are in excess of the amounts that would have been deducted based on arms length negotiations. Rents Kimco receives will not constitute redetermined rents if they qualify for the safe harbor provisions contained in the Code. Safe harbor provisions are provided where:
| Amounts are received by a REIT for services customarily furnished or rendered in connection with the rental of real property. This safe harbor, however, is no longer available commencing with Kimcos taxable year beginning January 1, 2005; |
| Amounts are excluded from the definition of impermissible tenant service income as a result of satisfying a 1% de minimis exception; |
| The taxable REIT subsidiary renders a significant amount of similar services to unrelated parties and the charges for such services are substantially comparable; |
| Rents paid to the REIT by tenants who are not receiving services from the taxable REIT subsidiary are substantially comparable to the rents paid by the REITs tenants leasing comparable space who are receiving such services from the taxable REIT subsidiary and the charge for the services is separately stated; and |
| The taxable REIT subsidiarys gross income from the service is not less than 150% of the subsidiarys direct cost in furnishing the service. |
Asset Tests. At the close of each quarter of Kimcos taxable year, it also must satisfy the following tests relating to the nature and composition of its assets.
| First, at least 75% of the value of its total assets must be represented by real estate assets, cash, cash items and government securities. For purposes of this test, real estate assets include stock or debt instruments that are purchased with the proceeds of a stock offering or a long-term public debt offering with a term of at least five years, but only for the one-year period beginning on the date Kimco receives these proceeds, and stock of other qualifying REITs. |
| Second, not more than 25% of its total assets may be represented by securities other than those includible in the 75% asset test. |
| Third, for taxable years ending on or prior to December 31, 2000, of the investments included in the 25% asset class, the value of any one issuers securities owned by Kimco may not exceed 5% of the |
72
value of Kimcos total assets and Kimco may not own more than 10% of any one issuers outstanding voting securities. |
| Finally, for taxable years beginning after December 31, 2000, (a) not more than 20% of the value of Kimcos total assets may be represented by securities of one or more taxable REIT subsidiaries and (b) except for the securities of a taxable REIT subsidiary and securities included in the 75% asset test, not more than 5% of the value of its assets may be represented by securities of any one issuer and Kimco may not own more than 10% of the total vote or value of the outstanding securities of any one issuer. Certain types of securities, including certain straight debt securities, are disregarded as securities solely for purposes of the 10% value test. In addition, commencing with its taxable year beginning January 1, 2005, solely for the purposes of the 10% value test, the determination of Kimcos interest in the assets of a partnership or limited liability company in which it owns an interest will be based on its proportionate interest in any securities issued by the partnership or limited liability company, excluding for these purposes certain securities described in the Code. |
Kimco currently has numerous direct and indirect wholly-owned subsidiaries. As set forth above, the ownership of more than 10% of the voting securities of any one issuer by a REIT is prohibited unless such subsidiary is a taxable REIT subsidiary. However, if Kimcos subsidiaries are qualified REIT subsidiaries as defined in the Code, those subsidiaries will not be treated as separate corporations for United States federal income tax purposes. Thus, Kimcos ownership of stock of a qualified REIT subsidiary will not cause its to fail the asset tests.
Kimco believes, and will represent to its counsel for purposes of its opinion, if given, that (i) the value of the securities of the Service Company held by Kimco did not exceed at the close of any quarter during a taxable year that ended on or prior to December 31, 2000 5% of the total value of its assets and (ii) the value of the securities of all of Kimcos taxable REIT subsidiaries has not exceeded and will not exceed more than 20% of the value of its total assets at the close of each quarter during a taxable year that begins after December 31, 2000. Kimcos tax counsel, if required to render its opinion as to Kimcos qualification as a REIT, will be relying on Kimcos representations to that effect with respect to the value of those securities and assets. No independent appraisals will be obtained to support this conclusion. There can be no assurance that the IRS will not contend that the value of the securities of the Service Company held by Kimco exceeds the applicable value limitation.
After initially meeting the asset tests at the close of any quarter, Kimco will not lose its status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of changes in asset values. If the failure to satisfy the asset tests results from an acquisition of securities or other property during a quarter, the failure can be cured by the disposition of sufficient nonqualifying assets within 30 days after the close of the quarter. Kimco intends to maintain adequate records of the value of its assets to ensure compliance with the asset tests and to take such other actions within 30 days after the close of any quarter as may be required to cure any noncompliance. If Kimco fails to cure any noncompliance with the asset tests within the 30 day cure period, it would cease to qualify as a REIT unless it is eligible for certain relief provisions discussed below.
Certain relief provisions may be available to Kimco if it discovers a failure to satisfy the asset tests described above after the 30 day cure period. Under these provisions, Kimco will be deemed to have met the 5% and 10% REIT asset tests if the value of its nonqualifying assets (i) does not exceed the lesser of (a) 1% of the total value of its assets at the end of the applicable quarter or (b) $10,000,000 and (ii) Kimco disposes of the nonqualifying assets or otherwise satisfy such tests within (a) six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or (b) the period of time prescribed by Treasury Regulations to be issued. For violations of any asset tests due to reasonable cause and not due to willful neglect and that are, in the case of the 5% and 10% asset tests, in excess of the de minimis exception described above, Kimco may avoid disqualification as a REIT after the 30 day cure period, by taking steps including (i) the disposition of sufficient assets to meet the asset test within (a) six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or (b) the period of time prescribed by Treasury Regulations to be issued, (ii) paying a tax equal to the greater of (a) $50,000 or (b) the highest corporate tax rate multiplied by the net income
73
generated by the nonqualifying assets, and (iii) disclosing certain information to the IRS. Although Kimco believes it has satisfied the asset tests described above and plans to take steps to ensure that it satisfies such tests for any quarter with respect to which retesting is to occur, there can be no assurance that Kimco will always be successful or will not require a reduction in its overall interest in an issuer (including a taxable REIT subsidiary). If Kimco fails to cure any noncompliance with the asset tests in a timely manner and the relief provisions described above are not available, it would cease to qualify as a REIT. See Failure to Qualify below.
Annual Distribution Requirements. To maintain its qualification as a REIT, Kimco is required to distribute dividends, other than capital gain dividends, to its stockholders in an amount at least equal to the sum of:
| 90% of its REIT taxable income, and |
| 90% of its after tax net income, if any, from foreclosure property; minus |
| the excess of the sum of specified items of non-cash income items over 5% of its REIT taxable income. |
Kimcos REIT taxable income is computed without regard to the dividends paid deduction and its net capital gain. In addition, for purposes of this test, non-cash income items includes income attributable to leveled stepped rents, original issue discount or purchase money discount debt, cancellation of indebtedness, and a like-kind exchange that is later determined to be taxable.
In addition, if Kimco disposes of any asset it acquired from a corporation which is or has been a C corporation in a transaction in which Kimcos basis in the asset is determined by reference to the basis of the asset in the hands of that C corporation, within the ten-year period following Kimcos acquisition of such asset, Kimco would be required to distribute at least 90% of the after-tax gain, if any, it recognized on the disposition of the asset, to the extent that gain does not exceed the excess of (a) the fair market value of the asset, over (b) Kimcos adjusted basis in the asset, in each case, on the date it acquired the asset.
Kimco generally must pay, or be treated as paying, the distributions described above in the taxable year to which they relate. At Kimcos election, a distribution will be treated as paid in a taxable year if it is declared before it timely files its tax return for such year and paid on or before the first regular dividend payment after that declaration, provided such payment is made during the twelve-month period following the close of such year. These distributions generally are taxable to Kimcos stockholders, other than tax-exempt entities, in the year in which paid. This is so even though distributions relate to the prior years for purposes of the 90% distribution requirement. The amount distributed must not be preferential. To avoid being preferential, every stockholder of the class of stock to which a distributions is made must be treated the same as every other stockholder of that class, and no class of stock may be treated other than according to its dividend rights as a class. To the extent that Kimco does not distribute all of its net capital gain or distributes at least 90%, but less than 100%, of its REIT taxable income, as adjusted, it will be subject to tax on the undistributed amount at regular corporate tax rates. Kimco believes it has made, and intends to continue to make, timely distributions sufficient to satisfy these annual distribution requirements and to minimize its corporate tax obligations.
Kimco expects that its REIT taxable income will be less than its cash flow because of depreciation and other non-cash charges included in computing its REIT taxable income. Accordingly, Kimco anticipates that it generally will have sufficient cash or liquid assets to enable it to satisfy its distribution requirement. However, it is possible that, from time to time, it may not have sufficient cash or other liquid assets to meet the distribution requirement due to timing differences between the actual receipt of income and actual payment of deductible expenses and the inclusion of that income and deduction of those expenses in arriving at its taxable income. In the event that those timing differences occur, in order to meet the distribution requirement, Kimco may be required to borrow funds in order to pay dividends, or pay dividends in the form of taxable stock dividends.
Under some circumstances, Kimco may be able to rectify an inadvertent failure to meet the 90% distribution requirement for a year by paying deficiency dividends to its stockholders in a later year, which may be
74
included in its deduction for dividends paid for the earlier year. Thus, Kimco may be able to avoid being taxed on amounts distributed as deficiency dividends. Kimco will be required, however, to pay interest based upon the amount of any deduction claimed for deficiency dividends and would be subject to any applicable penalty provisions.
In addition, Kimco will be required to pay a 4% excise tax to the extent it fails to distribute during each calendar year, or in the case of distributions with declaration and record dates falling in the last three months of the calendar year, by the end of January immediately following such year, at least the sum of 85% of its REIT ordinary income for such year and 95% of its REIT capital gain income for the year, plus, in each case, any undistributed taxable income from prior periods. Any REIT taxable income and net capital gain on which this excise tax is imposed for any year is treated as an amount distributed that year for purposes of calculating the tax.
For purposes of the 90% distribution requirement and excise tax described above, distributions declared during the last three months of the taxable year, payable to Kimco stockholders of record on a specified date during such period and paid during January of the following year, will be treated as paid by Kimco and received by its stockholders on December 31 of the year in which they are declared.
Failure to Qualify. Commencing with its taxable year beginning January 1, 2005, specified cure provisions are available to Kimco in the event that it violates a provision of the Code that would otherwise result in its failure to qualify as a REIT. Except with respect to violations of the REIT income tests and assets tests (for which the cure provisions are described above), and provided the violation is due to reasonable cause and not due to willful neglect, these cure provisions generally impose a $50,000 penalty for each violation in lieu of a loss of REIT status. If Kimco fails to qualify for taxation as a REIT in any taxable year, and the relief provisions do not apply, it will be subject to tax, including any applicable alternative minimum tax, on its taxable income at regular corporate rates. That failure to qualify for taxation as a REIT could have an adverse effect on the market value and marketability of the Kimco common stock you may receive in partial consideration for Pan Pacific shares pursuant to the merger. Distributions to stockholders in any year in which Kimco fails to qualify as a REIT will not be deductible by it nor will they be required to be made. As a result, Kimcos failure to qualify as a REIT would substantially reduce the cash available for distribution by it to its stockholders. In that event, to the extent of current and accumulated earnings and profits, all distributions to stockholders will be taxable as ordinary income and, subject to specified limitations in the Code, corporate distributees may be eligible for the dividends received deduction. Unless entitled to relief under specific statutory provisions, Kimco will also be disqualified from taxation as a REIT for the four taxable years following the year during which qualification was lost. It is not possible to state whether in all circumstances Kimco would be entitled to that statutory relief.
Other Tax Matters. Some of Kimcos investments are through partnerships which may involve special tax risks. These risks include possible challenge by the IRS of (a) allocations of income and expense items, which could affect the computation of Kimcos income, and (b) the status of the partnerships as partnerships, as opposed to associations taxable as corporations, for income tax purposes. Treasury Regulations that are effective as of January 1, 1997 provide that a domestic partnership is generally taxed as a partnership unless it elects to be taxed as an association taxable as a corporation. None of the partnerships in which Kimco is a partner has made or intends to make that election. These Treasury Regulations provide that a partnerships claimed classification will be respected for periods prior to January 1, 1997 if the entity had a reasonable basis for its claimed classification, and that partnership had not been notified in writing on or before May 8, 1996 that the classification of that entity was under examination. If any of the partnerships were treated as an association for a prior period, and (i) if Kimcos ownership in any of those partnerships exceeded 10% of the partnerships voting interest or (ii) the value of that interest exceeded 5% of the value of Kimcos assets, it could cease to qualify as a REIT for that period and possibly future periods. Moreover, the deemed change in classification of that partnership from an association to a partnership effective as of January 1, 1997 would be a taxable event. Kimco believes that each of the partnerships has been properly treated for tax purposes as a partnership, and not as an association taxable as a corporation. However, no assurance can be given that the IRS may not successfully challenge the status of any of the partnerships.
75
Kimco may be subject to state or local taxation in various state or local jurisdictions, including those in which it transacts business. Kimcos state or local tax treatment may not conform to the federal income tax consequences described above. Consequently, prospective investors should consult their own tax advisors regarding the effect of state and local tax laws on the receipt, ownership and disposition of Kimco common stock.
If Pan Pacific survives the merger with KRC Acquisition Inc., and Pan Pacific continues to qualify as a REIT for United States federal income tax purposes, Pan Pacifics common stock will be treated as a real estate asset for purposes of Kimcos compliance with the REIT assets tests, and the dividends received by Kimco with respect to such stock will be qualifying income under the REIT income tests. If, however, Pan Pacific failed to qualify a REIT, Kimcos ownership of Pan Pacific stock and receipt of Pan Pacific dividends could impair Kimcos ability to qualify as a REIT. See Failure to Qualify above. In addition, if Pan Pacific failed to qualify as a REIT, it would be subject to tax as a C corporation, and the resulting tax liability would reduce the value of the Pan Pacific common stock held by Kimco. If KRC Acquisition Inc. survives the merger as a qualified REIT subsidiary of Kimco, for purposes of determining Kimcos compliance with the REIT income and asset tests described above, Kimco will be treated as owning the assets owned by Pan Pacific and as deriving the income produced by such assets.
Taxation of Holders of Kimco Common Stock
The following summary describes the material United States federal income tax consequences to U.S. Holders of acquiring, owning and disposing of Kimco common stock received in partial consideration for Pan Pacific common stock pursuant to the merger. This summary deals only with Kimco common stock held as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment). Your tax treatment will vary depending upon your particular situation, and this discussion does not address all the tax consequences that may be relevant to you in light of your particular circumstances.
Taxation of U.S. Holders Generally
Distributions Generally. Distributions out of Kimcos current or accumulated earnings and profits will be treated as dividends and, other than with respect to capital gain dividends, and certain amounts that have previously been subject to corporate level tax, discussed below, will be taxable to U.S. Holders as ordinary income. See Tax Rates below. As long as Kimco qualifies as a REIT, these distributions will not be eligible for the dividends-received deduction in the case of U.S. Holders that are corporations. For purposes of determining whether distributions to holders of Kimco common stock are out of current or accumulated earnings and profits, Kimcos earnings and profits will be allocated first to its outstanding preferred stock and then to its outstanding common stock.
To the extent that Kimco makes distributions on its common stock in excess of its current and accumulated earnings and profits, these distributions will be treated first as a tax-free return of capital to a U.S. Holder. This treatment will reduce the U.S. Holders adjusted tax basis in its shares of Kimco common stock by the amount of the distribution, but not below zero. Distributions in excess of Kimcos current and accumulated earnings and profits and in excess of a U.S. Holders adjusted tax basis in its shares will be taxable as capital gain from the sale or exchange of the shares. Such gain will be taxable as long-term capital gain if the shares have been held for more than one year. Dividends Kimco declares in October, November, or December of any year and which are payable to a stockholder of record on a specified date in any of these months will be treated as both paid by it and received by the stockholder on December 31 of that year, provided Kimco actually pays the dividend on or before January 31 of the following year. United States holders may not include in their own income tax returns any of Kimcos net operating losses or capital losses.
Capital Gain Dividends. Dividends that Kimco properly designates as capital gain dividends will be taxable to its taxable U.S. Holders as a gain from the sale or disposition of a capital asset, to the extent that such gain does not exceed Kimcos actual net capital gain for the taxable year. These gains may be taxable to non-corporate
76
U.S. Holders at a 15% or 25% rate. U.S. Holders that are corporations may, however, be required to treat up to 20% of some capital gain dividends as ordinary income.
Retention of Net Capital Gains. Kimco may elect to retain, rather than distribute as a capital gain dividend, all or a portion of its net capital gains. If it makes this election, it would pay tax on Kimcos retained net capital gains. In addition, to the extent it so elects, a U.S. Holder generally would:
| include its pro rata share of Kimcos undistributed net capital gains in computing its long-term capital gains in its return for its taxable year in which the last day of Kimcos taxable year falls, subject to certain limitations as to the amount that is includable; |
| be deemed to have paid its proportionate share of the tax imposed on Kimco on the designated amounts included in the U.S. Holders long-term capital gains; |
| receive a credit or refund for the amount of tax deemed paid by it; |
| increase the adjusted basis of its common stock by the difference between the amount of includable gains and the tax deemed to have been paid by it; and |
| in the case of a U.S. Holder that is a corporation, appropriately adjust its earnings and profits for the retained capital gains in accordance with Treasury Regulations to be promulgated by the Secretary of the Treasury. |
Passive Activity Losses and Investment Interest Limitations. Distributions Kimco makes and gain arising from the sale or exchange by a U.S. Holder of Kimcos shares will not be treated as passive activity income. As a result, U.S. Holders generally will not be able to apply any passive losses against this income or gain. A U.S. Holder may elect to treat capital gain dividends, capital gains from the disposition of stock and qualified dividend income as investment income for purposes of computing the investment interest limitation, but in such case, the stockholder will be taxed at ordinary income rates on such amount. Other distributions made by Kimco, to the extent they do not constitute a return of capital, generally will be treated as investment income for purposes of computing the investment interest limitation.
Dispositions of Kimco Common Stock. If a U.S. Holder sells or disposes of shares of Kimco common stock to a person other than Kimco, it will recognize gain or loss for United States federal income tax purposes in an amount equal to the difference between the amount of cash and the fair market value of any property received on the sale or other disposition and the holders adjusted basis in the shares for tax purposes. This gain or loss, except as provided below, will be long-term capital gain or loss if the holder has held the common stock for more than one year. If, however, a U.S. Holder recognizes loss upon the sale or other disposition of Kimco common stock that it has held for six months or less, after applying certain holding period rules, the loss recognized will be treated as a long-term capital loss to the extent the U.S. Holder received distributions from Kimco which were required to be treated as long-term capital gains. Long-term capital gains of noncorporate taxpayers generally are taxable at a maximum United States federal income tax rate of 15%. Capital gains of corporate stockholders generally are taxable at the regular tax rates applicable to corporations. The deductibility of capital losses may be subject to limitations. In addition, the IRS has the authority to prescribe, but has not yet prescribed, regulations that would apply a tax rate of 25% to a portion of capital gain realized by a noncorporate stockholder on the sale of REIT shares that would correspond to the REITs unrecaptured Section 1250 gain.
Kimco reports to its U.S. Holders and the IRS the amount of dividends paid during each calendar year, and the amount of any tax withheld. Under the backup withholding rules, a stockholder may be subject to backup withholding with respect to dividends paid unless the holder is a corporation or comes within certain other exempt categories and, when required, demonstrates this fact, or provides a taxpayer identification number, certifies as to no loss of exemption from backup withholding, and otherwise complies with applicable requirements of the backup withholding rules. A U.S. Holder that does not provide Kimco with its correct taxpayer identification number may also be subject to penalties imposed by the IRS. Backup withholding is not
77
an additional tax. Any amount paid as backup withholding will be creditable against the stockholders federal income tax liability. In addition, Kimco may be required to withhold a portion of capital gain distributions to any stockholders who fail to certify their non-foreign status. See Taxation of Non-United States Stockholders.
The maximum tax rate for non-corporate taxpayers for (1) capital gains, including certain capital gain dividends, has generally been reduced to 15% (although depending on the characteristics of the assets which produced these gains and on designations which Kimco may make, certain capital gain dividends may be taxed at a 25% rate) and (2) qualified dividend income has generally been reduced to 15%. In general, dividends payable by REITs are not eligible for the reduced tax rate on corporate dividends, except to the extent that certain holding requirements have been met and the REITs dividends are attributable to dividends received from taxable corporations (such as its taxable REIT subsidiaries) or to income that was subject to tax at the corporate/REIT level (for example, if it distributed taxable income that it retained and paid tax on in the prior taxable year). The currently applicable provisions of the United States federal income tax laws relating to the 15% tax rate are currently scheduled to sunset or revert to the provisions of prior law effective for taxable years beginning after December 31, 2010, at which time the capital gains tax rate will be increased to 20% and the rate applicable to dividends will be increased to the tax rate then applicable to ordinary income.
The following discussion addresses the rules governing United States federal income taxation of the ownership and disposition of Kimco common stock received by non-U.S. Holders in partial consideration for Pan Pacific common stock pursuant to the merger. These rules are complex, and no attempt is made herein to provide more than a brief summary of such rules. Accordingly, the discussion does not address all aspects of United States federal income taxation that may be relevant to a non-U.S. Holder in light of its particular circumstances and does not address any state, local or foreign tax consequences. We urge non-United States holders to consult their tax advisors to determine the impact of federal, state, local and foreign income tax laws on the receipt, ownership, and disposition of shares of Kimco common stock, including any reporting requirements.
Distributions Generally. Distributions that are neither attributable to gain from Kimcos sale or exchange of United States real property interests nor designated by Kimco as capital gain dividends will be treated as dividends of ordinary income to the extent that they are made out of Kimcos current or accumulated earnings and profits. Such distributions ordinarily will be subject to withholding of United States federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty unless the distributions are treated as effectively connected with the conduct by the non-U.S. Holder of a United States trade or business. Under certain treaties, however, lower withholding rates generally applicable to dividends do not apply to dividends from a REIT. Certain certification and disclosure requirements must be satisfied to be exempt from withholding under the effectively connected income exemption. Dividends that are treated as effectively connected with such a trade or business will be subject to tax on a net basis (that is, after allowance for deductions) at graduated rates, in the same manner as dividends paid to U.S. Holders are subject to tax, and are generally not subject to withholding. Any such dividends received by a non-U.S. Holder that is a corporation may also be subject to an additional branch profits tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty.
Kimco expects to withhold United States income tax at the rate of 30% on any distributions made to a non-United States holder unless:
| a lower treaty rate applies and the non-U.S. Holder files with Kimco an IRS Form W-8BEN evidencing eligibility for that reduced treaty rate; or |
| the non-U.S. Holder files an IRS Form W-8ECI with Kimco claiming that the distribution is income effectively connected with the non-U.S. Holders trade or business. |
78
Returning Capital Distributions. Distributions in excess of Kimcos current and accumulated earnings and profits will not be taxable to a non-U.S. Holder to the extent that such distributions do not exceed the non-U.S. Holders adjusted basis in Kimco common stock, but rather will reduce the adjusted basis of such common stock. To the extent that such distributions exceed a non-U.S. Holders adjusted basis in Kimco common stock, they will give rise to gain from the sale or exchange of such stock. The tax treatment of this gain is described below.
For withholding purposes, Kimco expects to treat all distributions as made out of its current or accumulated earnings and profits. However, amounts withheld should generally be refundable if it is subsequently determined that the distribution was, in fact, in excess of its current and accumulated earnings and profits.
Capital Gain Dividends and Distributions Attributable to a Sale or Exchange of U.S. Real Property Interests. Distributions to a non-U.S. Holder that Kimco properly designates as capital gain dividends, other than those arising from the disposition of a U.S. real property interest, generally should not be subject to United States federal income taxation, unless:
(1) | the investment in Kimco common stock is treated as effectively connected with the non-U.S. Holders United States trade or business, in which case the non-U.S. Holder will be subject to the same treatment as U.S. Holders with respect to such gain, except that a non-U.S. Holder that is a foreign corporation may also be subject to the 30% branch profits tax, as discussed above; or |
(2) | the non-U.S. Holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the nonresident alien individual will be subject to a 30% tax on the individuals capital gains. |
Pursuant to FIRPTA, distributions that are attributable to net capital gain from Kimcos sale or exchange of U.S. real property interests and paid to a non-U.S. Holder that owns more than 5% of the value of common stock at any time during the one-year period ending on the date of distribution will be subject to United States federal income tax as income effectively connected with a United States trade or business. The FIRPTA tax will apply to these distributions whether or not the distribution is designated as a capital gain dividend.
Non-U.S. Holders would generally be taxed at the same rates applicable to U.S. Holders, subject to a special alternative minimum tax in the case of nonresident alien individuals. Kimco will be required to withhold and to remit to the IRS 35% of any distribution to a non-U.S. Holder that could be treated as a capital gain dividend. The amount withheld is creditable against the non-U.S. Holders United States federal income tax liability. However, any distribution with respect to any class of stock which is regularly traded on an established securities market located in the United States is not subject to FIRPTA, and therefore, not subject to the 35% United States withholding tax described above, if the non-U.S. Holder did not own more than 5% of such class of stock at any time during the one-year period ending on the date of the distribution. Instead, such distributions will be treated as ordinary dividend distributions.
Retention of Net Capital Gains. Although the law is not clear on the matter, it appears that amounts designated by Kimco as retained capital gains in respect of the common stock held by non-U.S. Holders generally should be treated in the same manner as actual distributions by Kimco of capital gain dividends. Under this approach, a non-U.S. Holder would be able to offset as a credit against its United States federal income tax liability resulting from its proportionate share of the tax paid by Kimco on such retained capital gains, and to receive from the IRS a refund to the extent its proportionate share of such tax paid by Kimco exceeds its actual United States federal income tax liability.
Sale of Kimco Common Stock. Gain recognized by a non-U.S. Holder upon the sale or exchange of Kimco common stock generally will not be subject to United States taxation unless such stock constitutes a U.S. real property interest. Kimco common stock will not constitute a U.S. real property interest so long as Kimco is a domestically-controlled qualified investment entity, which includes a REIT if at all times during a specified testing period less than 50% in value of its stock is held directly or indirectly by non-U.S. Holders.
79
Notwithstanding the foregoing, gain from the sale or exchange of Kimco common stock not otherwise subject to FIRPTA will be taxable to a non-U.S. Holder if either (1) the investment in Kimco common stock is treated as effectively connected with the non-U.S. Holders United States trade or business or (2) the non-U.S. Holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met. In addition, even if Kimco is a domestically controlled qualified investment entity, upon disposition of Kimco common stock (subject to the 5% Exception applicable to regularly traded stock described above), a non-U.S. Holder may be treated as having gain from the sale or exchange of U.S. real property interest if the non-U.S. Holder (1) disposes of Kimco common stock within a 30-day period preceding the ex-dividend date of a distribution, any portion of which, but for the disposition, would have been treated as gain from the sale or exchange of a U.S. real property interest and (2) acquires, or enters into a contract or option to acquire, or is deemed to acquire, other shares of Kimco common stock within 30 days after such ex-dividend date.
Even if Kimco does not qualify as a domestically-controlled qualified investment entity at the time a non-U.S. Holder sells or exchanges Kimco common stock, gain arising from such a sale or exchange would not be subject to United States taxation under FIRPTA as a sale of a U.S. real property interest if:
(1) | Kimco common stock is regularly traded, as defined by applicable Treasury regulations, on an established securities market such as the NYSE; and |
(2) | the selling non-U.S. Holder owned, actually and constructively, 5% or less in value of Kimco common stock throughout the shorter of the period during which the non-U.S. Holder held such stock or the five-year period ending on the date of the sale or exchange. |
If gain on the sale or exchange of Kimco common stock were subject to taxation under FIRPTA, the non-U.S. Holder would be subject to regular United States federal income tax with respect to such gain in the same manner as a taxable U.S. Holder (subject to any applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals) and the purchaser of the common stock would be required to withhold and remit to the IRS 10% of the purchase price.
Backup Withholding Tax and Information Reporting. Generally, Kimco must report annually to the IRS the amount of dividends paid to a non-U.S. Holder, such holders name and address, and the amount of tax withheld, if any. A similar report is sent to the non-U.S. Holder. Pursuant to tax treaties or other agreements, the IRS may make its reports available to tax authorities in the non-U.S. Holders country of residence.
Payments of dividends or of proceeds from the disposition of stock made to a non-U.S. Holder may be subject to information reporting and backup withholding unless such holder establishes an exemption, for example, by properly certifying its non-U.S. Holder status on an IRS Form W-8BEN or another appropriate version of IRS Form W-8. Notwithstanding the foregoing, backup withholding and information reporting may apply if either Kimco has or its paying agent has actual knowledge, or reason to know, that a non-U.S. Holder is a U.S. person.
Backup withholding is not an additional tax. Rather, the United States income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may be obtained, provided that the required information is furnished to the IRS.
State, local and foreign income tax laws may differ substantially from the corresponding federal income tax laws, and this discussion does not purport to describe any aspect of the tax laws of any state, local or foreign jurisdiction. You should consult your tax advisor regarding the effect of state, local and foreign tax laws with respect to Kimcos tax treatment as a REIT and on the receipt, ownership and disposition of Kimco common stock.
80
COMPARISON OF RIGHTS OF STOCKHOLDERS OF KIMCO AND
STOCKHOLDERS OF PAN PACIFIC
Both Kimco and Pan Pacific are incorporated in Maryland. Upon consummation of the merger, Pan Pacifics stockholders will become stockholders of Kimco. The rights of Pan Pacifics stockholders are governed currently by the Maryland General Corporation Law and by Pan Pacifics charter and bylaws. If Pan Pacifics stockholders become stockholders of Kimco as a result of Kimco electing to deliver a portion of the merger consideration in the form of its common stock, their rights will continue to be governed by the Maryland General Corporation Law but will be governed by Kimcos charter and bylaws.
Certain Material Differences Between the Rights of Stockholders of Kimco and Stockholders of Pan Pacific
The following is a summary of the material differences between the rights of Pan Pacific stockholders and the rights of Kimco stockholders. This summary does not purport to be a complete description of the differences between the rights of Pan Pacific stockholders and Kimco stockholders and is qualified in its entirety by reference to the governing corporate instruments of Kimco and Pan Pacific. To obtain a copy of the charters and bylaws of Kimco and Pan Pacific, see Where You Can Find More Information.
Kimco. The total number of authorized shares of Kimco stock is 461,600,000, which consists of 300,000,000 shares of common stock, par value $0.01 per share, 153,000,000 shares of excess stock, par value $0.01 per share, and 8,600,000 shares of preferred stock, par value $1.00 per share. As of July 6, 2006, there were 241,201,289 shares of Kimco common stock issued and 240,654,709 outstanding, no shares of Kimco excess stock issued and outstanding, and 700,000 shares of Class F cumulative redeemable preferred stock issued and outstanding.
Pan Pacific. The total number of authorized shares of Pan Pacific stock is 130,000,000, which consists of 100,000,000 shares of common stock, par value $0.01 per share, and 30,000,000 shares of preferred stock, par value $0.01 per share. As of July 6, 2006, there were 40,774,388 shares of Pan Pacific common issued and outstanding, including 198,090 shares of restricted stock, and no shares of preferred stock issued and outstanding.
Size of the Board of Directors
Kimco. Under the Maryland General Corporation Law, a corporation must have at least one director. Subject to this provision, a corporations bylaws may alter the number of directors and authorize a majority of the entire board of directors to alter within specified limits the number of directors set by the corporations charter or its bylaws.
Kimcos bylaws provide that the number of directors shall not be less than three nor more than 15 and that the number of directors may be changed by a majority vote of the Kimco board of directors. Kimcos board of directors currently consists of nine directors. All the directors serve a one-year term of office. There is no cumulative voting on the election of directors.
Pan Pacific. Under the Maryland General Corporation Law, a corporation must have at least one director. Subject to this provision, a corporations bylaws may alter the number of directors and authorize a majority of the entire board of directors to alter within specified limits the number of directors set by the corporations charter or its bylaws.
81
The Pan Pacific charter and bylaws provide that the number of persons constituting the Pan Pacific board may not be less than the minimum number required by the Maryland General Corporation Law, nor more than 15. The Pan Pacific bylaws provide that, within the parameters stated above, the number of directors may be increased or decreased by resolution of a majority of the entire Pan Pacific board, except that the term of a director may not be affected by a decrease in the number of directors. The Pan Pacific board has five authorized board seats.
Removal of Directors
Kimco. Under the Maryland General Corporation Law, unless the corporations charter provides otherwise, the stockholders of a corporation with a non-classified board of directors may remove any director with or without cause, by the affirmative vote of a majority of all the votes entitled to be cast for the election of directors.
Kimcos bylaws provide that directors may be removed, with or without cause, at any meeting of stockholders by the vote of the holders of a majority of the stock represented and entitled to vote.
Pan Pacific. Under the Maryland General Corporation Law, unless the corporations charter provides otherwise, the stockholders of a corporation with a non-classified board of directors may remove any director with or without cause by the affirmative vote of a majority of all the votes entitled to be cast for the election of directors.
The Pan Pacific charter provides that directors may be removed only for cause and only by the affirmative vote of the holders of a majority of the votes entitled to be cast in the election of the directors.
Charter Amendments
Kimco. The Maryland General Corporation Law generally allows amendment of a corporations charter if its board of directors adopts a resolution setting forth the amendment proposed, declaring its advisability and directing that it be submitted to the stockholders for consideration, and the stockholders thereafter approve such proposed amendment either at a special meeting called by the board for the purpose of approval of such amendment by the stockholders or, if so directed by the board, at the next annual stockholders meeting by the affirmative vote of two-thirds of all votes entitled to be cast on the matter.
Most amendments to Kimcos charter must be approved by the board of directors and by the vote of at least two-thirds of the votes entitled to be cast at a meeting of stockholders.
Pan Pacific. The Maryland General Corporation Law generally allows amendment of a corporations charter if its board of directors adopts a resolution setting forth the amendment proposed, declaring its advisability and directing that it be submitted to the stockholders for consideration, and the stockholders thereafter approve such proposed amendment either at a special meeting called by the board for the purpose of approval of such amendment by the stockholders or, if so directed by the board, at the next annual stockholders meeting by the affirmative vote of two-thirds of all votes entitled to be cast on the matter.
The Pan Pacific charter provides that, at any such meeting, the proposed amendment must be approved by a majority of all votes entitled to be cast on the matter.
Bylaw Amendments
Kimco. Under the Maryland General Corporation Law, the power to amend the bylaws may be left with the stockholders, vested exclusively in the directors or shared by both groups.
Kimcos bylaws provide that stockholders have the power to adopt, alter or repeal any bylaws or to make new bylaws, and that the board of directors shall have the power to do the same, except that the board of directors shall not alter or repeal the section of the bylaws governing amendment or any bylaws made by the stockholders.
82
Pan Pacific. Under the Maryland General Corporation Law, the power to amend the bylaws may be left with the stockholders, vested exclusively in the directors or shared by both groups.
The Pan Pacific charter and bylaws vest the power to adopt, alter and repeal the Pan Pacific bylaws in the stockholders by the affirmative vote of the holders of a majority of the shares entitled to vote. Subject to this power of the stockholders, the Pan Pacific board is also authorized to adopt, alter and repeal the Pan Pacific bylaws.
Vote on Merger, Consolidation or Sale of Substantially all Assets
Kimco. Under the Maryland General Corporation Law, unless the corporate charter states otherwise and except for certain transfers of all or substantially all of a corporations assets and mergers that do not require stockholder approval, the
| sale, lease, exchange or transfer of all or substantially all of the assets of a corporation not in the ordinary course of business conducted by it, and |
| any merger, consolidation or share exchange involving the corporation, |
requires approval by holders of two-thirds of the shares of the corporation entitled to vote on such matters.
Kimcos charter does not provide otherwise.
Pan Pacific. Under the Maryland General Corporation Law, unless the corporate charter states otherwise and except for certain transfers of all or substantially all of a corporations assets and mergers that do not require stockholder approval,
| the sale, lease, exchange or transfer of all or substantially all of the assets of a corporation not in the ordinary course of business conducted by it, and |
| any merger, consolidation or share exchange involving the corporation, |
requires approval by holders of two-thirds of the shares of the corporation entitled to vote on such matters.
Pan Pacifics charter provides that each of these matters may be approved by the stockholders by a majority of all the votes entitled to be cast on the matter.
Limits on Ownership and Transfer of Shares
Kimco. Kimcos charter has provisions which restrict the ownership of its stock. See Description of Kimco Common StockCommon StockRestrictions on Ownership.
Pan Pacific. No person or entity may own, beneficially or constructively, more than 9.8% of Pan Pacifics outstanding common stock. Pan Pacifics board may, but is in no event obligated to, permit ownership in excess of the foregoing ownership limit if it determines that permitting a higher level of ownership will not impair Pan Pacifics ability to qualify as a real estate investment trust under the Internal Revenue Code. An owner of an interest in an entity which itself holds, directly or indirectly, shares of Pan Pacific common stock, is treated for this purpose as holding a proportionate number of the shares of Pan Pacific common stock held by that entity. With respect to beneficial ownership, percentage ownership is measured for this purpose using either the monetary value or absolute number of shares of common stock held, whichever measurement is more restrictive. To the extent any transfer of Pan Pacifics common stock would cause a stockholder or any other person or entity to exceed the ownership limit described above, any shares sought to be transferred in violation of the ownership limit will be transferred automatically by operation of law to a trust for the benefit of a charitable organization selected by Pan Pacific. If, for any reason, such transfer to the trust is not automatically effective, the transfer of that number of shares that would cause the ownership limitation to be exceeded will be void ab initio. The acquisition of an interest in an entity that holds Pan Pacific common stock and which causes that entity to violate Pan Pacifics ownership limit, or any greater limit permitted by Pan Pacifics board of directors, would cause the entity to be divested of a sufficient number of shares of Pan Pacific common stock, again in favor of a trust for the benefit of a charitable organization, to comply with the applicable limit.
83
Stockholder Meetings
Kimco. The Kimco bylaws provide that an annual meeting of stockholders is to be held each year during the month of May at a time and place designated by the Kimco board.
Under the Maryland General Corporation Law, a special meeting of stockholders may be called by the President, the board of directors or any other person specified in the corporations charter or bylaws.
Kimcos bylaws provide that a special meeting of stockholders may be called by the President or at the request in writing of a majority of the board of directors or of stockholders owning not less than 25% of Kimcos issued and outstanding shares. A special meeting need not be called to consider any matter which is substantially the same as a matter voted on at any special meeting held during the preceding 12 months.
Pan Pacific. The Pan Pacific bylaws provide that an annual meeting of stockholders is to be held each year during the month of May, as designated by the Pan Pacific board, unless the board elects to hold the meeting in another month.
Under the Maryland General Corporation Law, a special meeting of stockholders may be called by the President, the board of directors or any other person specified in the corporations charter or bylaws.
Under the Pan Pacific bylaws, a special meeting of the stockholders of Pan Pacific may be called at any time by:
| the Chief Executive Officer of Pan Pacific; |
| the President of Pan Pacific; or |
| the Pan Pacific board. |
In addition, the Secretary of Pan Pacific is required to call a special meeting of stockholders upon the written request of stockholders holding at least a majority of all the votes entitled to be cast at a special meeting. Such a request must state the purpose of the meeting and matters proposed to be acted on. The stockholders requesting the calling of a special meeting are required to pay the reasonably estimated costs of preparing and mailing a notice of such a meeting to the stockholders.
84
DESCRIPTION OF KIMCO CAPITAL STOCK
The following description of the terms of Kimco stock is only a summary. For a complete description, you are referred to the Maryland General Corporation Law and Kimcos charter and bylaws. Kimco has filed its charter and bylaws with the SEC as exhibits to previous Kimco registration statements. See Where You Can Find More Information.
General
Kimco has the authority to issue 300,000,000 shares of common stock, par value $.01 per share, and 153,000,000 shares of excess stock, par value $.01 per share. At July 6, 2006, Kimco had 241,201,289 shares of common stock issued and 240,654,709 shares of common stock outstanding and no shares of excess stock issued or outstanding. Prior to August 4, 1994, Kimco was incorporated as a Delaware corporation. On August 4, 1994, Kimco reincorporated as a Maryland corporation pursuant to an Agreement and Plan of Merger approved by Kimcos stockholders. The statements below describing the common stock are in all respects subject to and qualified in their entirety by reference to the applicable provisions of Kimcos charter and bylaws.
Holders of Kimco common stock will be entitled to receive dividends when, as and if authorized by the Kimco Board of Directors and declared by Kimco, out of assets legally available therefor. Payment and declaration of dividends on the common stock and purchases of shares thereof by Kimco will be subject to certain restrictions if Kimco fails to pay dividends on its preferred stock. Upon Kimcos liquidation, dissolution or winding up, holders of common stock are entitled to share equally and ratably in any assets available for distribution to them, after payment or provision for payment of Kimcos debts and other liabilities and the preferential amounts owing with respect to any of Kimcos outstanding preferred stock. The common stock possesses ordinary voting rights for the election of directors and in respect of other corporate matters, with each share entitling the holder thereof to one vote. Holders of common stock do not have cumulative voting rights in the election of directors, which means that holders of more than 50% of all of the shares of Kimcos common stock voting for the election of directors are able to elect all of the directors if they choose to do so and, accordingly, the holders of the remaining shares will be unable to elect any directors. Holders of shares of common stock do not have preemptive rights, which means they have no right to acquire any additional shares of common stock that may be issued by Kimco at a subsequent date.
Under Maryland law and Kimcos charter, a distribution (whether by dividend, redemption or other acquisition of shares) to holders of shares of common stock may be made only if, after giving effect to the distribution, Kimco is able to pay its indebtedness as it becomes due in the usual course of business and its total assets are greater than its total liabilities plus the amount necessary to satisfy the preferential rights upon dissolution of stockholders whose preferential rights on dissolution are superior to the holders of common stock and Kimco can pay its debts as they become due. Kimco has complied with these requirements in all of its prior distributions to holders of common stock.
Restrictions on Ownership
For Kimco to qualify as a REIT under the Code, not more than 50% in value of its outstanding stock may be owned, actually or constructively, by five or fewer individuals (as defined in the Code to include certain entities) during the last half of a taxable year. Kimcos stock also must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of 12 months or during a proportionate part of a shorter taxable year. In addition, rent from related party tenants (generally, a tenant of a REIT owned, actually or constructively, 10% or more by the REIT, or a 10% owner of the REIT) is not qualifying income for purposes of the income tests under the Code.
Subject to the exceptions specified in Kimcos charter, no holder may own, or be deemed to own by virtue of the constructive ownership provisions of the Code, more than 9.8% in value of the outstanding shares of
85
Kimcos common stock. The constructive ownership rules are complex and may cause common stock owned actually or constructively by a group of related individuals or entities or both to be deemed constructively owned by one individual or entity. As a result, the acquisition of less than 9.8% in value of the common stock (or the acquisition of an interest in an entity which owns common stock) by an individual or entity could cause that individual or entity (or another individual or entity) to own constructively in excess of 9.8% in value of the common stock, and thus subject such common stock to the ownership limit.
Existing stockholders who exceeded the ownership limit immediately after the completion of Kimcos initial public offering of its common stock in November 1991 may continue to do so and may acquire additional shares through the stock option plan, or from other existing stockholders who exceed the ownership limit, but may not acquire additional shares from such sources such that the five largest beneficial owners of common stock could own, actually or constructively, more than 49.6% of the outstanding common stock, and in any event may not acquire additional shares from any other sources. In addition, because rent from related party tenants is not qualifying rent for purposes of the gross income tests under the Code, Kimcos charter provides that no individual or entity may own, or be deemed to own by virtue of the attribution provisions of the Code (which differ from the attribution provisions applied to the ownership limit), in excess of 9.8% in value of Kimcos outstanding common stock. This ownership limitation is referred to as the related party limit. Kimcos Board of Directors may waive the ownership limit and the related party limit with respect to a particular stockholder (such related party limit has been waived with respect to the existing stockholders who exceeded the related party limit immediately after the initial public offering of Kimcos common stock) if evidence satisfactory to Kimcos Board of Directors and Kimcos tax counsel is presented that such ownership will not then or in the future jeopardize Kimcos status as a REIT. As a condition of that waiver, Kimcos Board of Directors may require opinions of counsel satisfactory to it or an undertaking or both from the applicant with respect to preserving Kimcos REIT status. The foregoing restrictions on transferability and ownership will not apply if Kimcos Board of Directors determines that it is no longer in Kimcos best interests to attempt to qualify, or to continue to qualify, as a REIT. If shares of common stock in excess of the ownership limit or the related party limit, or shares which would otherwise cause the REIT to be beneficially owned by less than 100 persons or which would otherwise cause Kimco to be closely held within the meaning of the Code or would otherwise result in Kimcos failure to qualify as a REIT, are issued or transferred to any person, that issuance or transfer shall be null and void to the intended transferee, and the intended transferee would acquire no rights to the stock. Shares transferred in excess of the ownership limit or the related party limit, or shares which would otherwise cause Kimco to be closely held within the meaning of the Code or would otherwise result in Kimcos failure to qualify as a REIT, will automatically be exchanged for shares of a separate class of stock, which is referred to as excess stock, that will be transferred by operation of law to Kimco as trustee for the exclusive benefit of the person or persons to whom the shares are ultimately transferred, until that time as the intended transferee retransfers the shares. While these shares are held in trust, they will not be entitled to vote or to share in any dividends or other distributions (except upon liquidation). The shares may be retransferred by the intended transferee to any person who may hold those shares at a price not to exceed either:
| the price paid by the intended transferee, or |
| if the intended transferee did not give value for such shares, a price per share equal to the market value of the shares on the date of the purported transfer to the intended transferee, |
at which point the shares will automatically be exchanged for ordinary common stock. In addition, such shares of excess stock held in trust are purchasable by Kimco for a 90-day period at a price equal to the lesser of the price paid for the stock by the intended transferee and the market price for the stock on the date Kimco determines to purchase the stock. This period commences on the date of the violative transfer if the intended transferee gives Kimco notice of the transfer, or the date Kimcos Board of Directors determines that a violative transfer has occurred if no notice is provided.
All certificates representing shares of common stock will bear a legend referring to the restrictions described above.
86
All persons who own, directly or by virtue of the attribution provisions of the Code, more than a specified percentage of the outstanding shares of common stock must file an affidavit with Kimco containing the information specified in Kimcos charter within 30 days after January 1 of each year. In addition, each common stockholder shall upon demand be required to disclose to Kimco in writing such information with respect to the actual and constructive ownership of shares as Kimcos Board of Directors deems necessary to comply with the provisions of the Code applicable to a REIT or to comply with the requirements of any taxing authority or governmental agency.
The registrar and transfer agent for Kimcos common stock is The Bank of New York.
Kimco is authorized to issue 3,600,000 shares of preferred stock, par value $1.00 per share, 345,000 shares of 7 3/4% Class A Cumulative Redeemable Preferred Stock, $1.00 par value per share, 230,000 shares of 8 1/2% Class B Cumulative Redeemable Preferred Stock, $1.00 par value per share, 460,000 shares of 8 3/8% Class C Cumulative Redeemable Preferred Stock, $1.00 par value per share, 700,000 shares of 7 1/2% Class D Cumulative Convertible Preferred Stock, $1.00 par value per share, 65,000 shares of Class E Floating Rate Cumulative Redeemable Preferred Stock, $1.00 par value per share, and 700,000 shares of 6.65% Class F Cumulative Redeemable Preferred Stock, $1.00 par value per share. Kimco is also authorized to issue 345,000 shares of Class A Excess Preferred Stock, $1.00 par value per share, 230,000 shares of Class B Excess Preferred Stock, $1.00 par value per share, 460,000 shares of Class C Excess Preferred Stock, $1.00 par value per share, 700,000 shares of Class D Excess Preferred Stock, $1.00 par value per share, 65,000 shares of Class E Excess Preferred Stock, $1.00 par value per share, and 700,000 shares of Class F Excess Preferred Stock, $1.00 par value per share, which are reserved for issuance upon conversion of certain outstanding Class A preferred stock, Class B preferred stock, Class C preferred stock, Class D preferred stock, Class E preferred stock or Class F preferred stock, as the case may be, as necessary to preserve Kimcos status as a REIT. At July 6, 2006, 700,000 shares of Class F Cumulative Redeemable Preferred Stock, represented by 7,000,000 depositary shares, were outstanding.
Under Kimcos charter, Kimcos Board of Directors may from time to time establish and issue one or more classes or series of preferred stock and fix the designations, powers, preferences and rights of the shares of such classes or series and the qualifications, limitations or restrictions thereon, including, but not limited to, the fixing of the dividend rights, dividend rate or rates, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions) and the liquidation preferences.
Kimcos charter authorizes the Kimco Board of Directors to classify and reclassify any unissued shares of Kimcos preferred stock into other classes or series of stock. Prior to the issuance of shares of each class or series, Kimcos board is required by Maryland law and by Kimcos charter to set, subject to its charter restrictions on transfer of its stock, the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms or conditions of redemption for each class or series. Thus, Kimcos board could authorize the issuance of shares of preferred stock with terms and conditions which could have the effect of delaying, deferring or preventing a transaction or a change in control that might involve a premium price for holders of Kimcos common stock or otherwise be in their best interest.
Kimco believes that the power to issue additional shares of common stock or preferred stock and to classify or reclassify unissued shares of preferred stock and thereafter to issue the classified or reclassified shares provides it with increased flexibility in structuring possible future financings and acquisitions and in meeting other needs that might arise. These actions can be taken without stockholder approval, unless stockholder approval is required by applicable law or the rules of any stock exchange or automated quotation system on which Kimcos securities may be listed or traded. Although Kimco has no present intention of doing so, it could issue a class or series of stock that could delay, defer or prevent a transaction or a change in control of the Company that might involve a premium price for holders of common stock or otherwise be in their best interest.
87
Maryland law and Kimcos articles of incorporation and bylaws contain a number of provisions which may have the effect of discouraging transactions that involve an actual or threatened change of control of Kimco. These provisions of Kimcos charter and bylaws include, among others, the restrictions on ownership described above and the provisions that give Kimco the flexibility to issue capital stock, including senior securities with special voting rights and priority over Kimco common stock. See Comparison of Rights of Stockholders of Kimco and Stockholders of Pan Pacific.
88
Due to the contemplated completion of the merger, Pan Pacific does not intend to hold a 2007 annual meeting of stockholders (Pan Pacific 2007 Annual Meeting). If, however, the merger is not completed and the Pan Pacific 2007 Annual Meeting is held, stockholder proposals intended to be presented at the meeting must be received by Pan Pacific no later than November 24, 2006 in order to be included in the proxy statement and form of proxy relating to that meeting. In order to be included in the proxy statement, such proposals must comply with the requirements as to form and substance established by the SEC for such proposals. A stockholder who wishes to make a proposal at the Pan Pacific 2007 Annual Meeting without submitting the proposal in the proxy statement and form of proxy relating to the meeting, must comply with the notice and other requirements set forth in Pan Pacifics bylaws. Pursuant to Pan Pacifics bylaws, that notice must be submitted in writing and delivered to the Secretary of Pan Pacific at the executive offices between January 28, 2007 and February 27, 2007.
The validity of any shares of Kimco common stock that may be issued in connection with the merger will be passed upon for Kimco by Wachtell, Lipton, Rosen & Katz.
The description of Federal Income Tax Considerations contained in the section of this document entitled Material United States Federal Income Tax Considerations is based on the opinion of Latham & Watkins LLP.
The consolidated financial statements and financial statement schedules of Kimco Realty Corporation and Subsidiaries incorporated in this Prospectus by reference to Kimco Realty Corporations Current Report on Form 8-K dated July 28, 2006, and managements assessment of the effectiveness of internal control over financial reporting (which is included in Managements Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K of Kimco Realty Corporation for the year ended December 31, 2005 and the audited combined historical summary of revenues and certain expenses of the Puerto Rico Portfolio incorporated in this Prospectus by reference to the Current Report on Form 8-K dated May 8, 2006 of Kimco Realty Corporation, have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements and schedules of Pan Pacific as of December 31, 2005 and 2004, and for each of the years in the three-year period ended December 31, 2005 and managements assessment of the effectiveness of internal control over financial reporting as of December 31, 2005 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Kimco and Pan Pacific each file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any reports, statements or other information we file at the SECs Public Reference Room, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from commercial document retrieval services and at the web site maintained by the SEC at http://www.sec.gov. You may inspect information that Kimco and Pan Pacific file with the New York Stock Exchange at the offices of the New York Stock Exchange at 20 Broad Street, New York, New York 10005.
Kimco filed a registration statement on Form S-4 to register with the SEC any Kimco common stock to be issued to Pan Pacific stockholders in the merger. This proxy statement/prospectus is a part of that registration statement and constitutes a prospectus of Kimco in addition to being a proxy statement of Pan Pacific for the special meeting. As allowed by SEC rules, this proxy statement/prospectus does not contain all the information you can find in the registration statement or the exhibits to the registration statement.
89
The SEC allows us to incorporate by reference information into this proxy statement/prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. This proxy statement/prospectus incorporates by reference the documents set forth below that we have previously filed with the SEC. These documents contain important information about our companies and their finances.
Kimcos SEC Filings
(File No. 1-10899)
Annual Report on Form 10-K filed on March 7, 2006 |
Quarterly Reports on Form 10-Q filed on May 9, 2006 and July 28, 2006 |
Current Report on Form 8-K, dated July 28, 2006 |
Current Report on Form 8-K, dated July 9, 2006 |
Current Report on Form 8-K, dated June 2, 2006 |
Current Report on Form 8-K, dated May 8, 2006 |
Current Report on Form 8-K, dated March 9, 2006 |
Current Report on Form 8-K, dated March 29, 2006 |
Definitive Proxy Statement on Schedule 14A, dated April 10, 2006 |
Registration Statement on Form 8-A (No. 1-10899), including any subsequently filed amendments and reports filed for the purpose of updating such description |
Pan Pacifics SEC Filings
(File No. 1-13243)
Annual Report on Form 10-K, filed on February 23, 2006 |
Quarterly Reports on Form 10-Q, filed on May 9, 2006 and July 27, 2006 |
Current Report on Form 8-K, dated July 9, 2006 |
Definitive Proxy Statement on Schedule 14A, dated March 24, 2006 |
Registration Statement on Form 8-A (No. 1-13243), including any subsequently filed amendments and reports filed for the purpose of updating such description |
We are also incorporating by reference additional documents that we may file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 between the date of this proxy statement/prospectus and the date of the special meeting.
The information incorporated by reference is deemed to be part of this proxy statement/prospectus. Any statement contained in a document incorporated or deemed to be incorporated by reference in this proxy statement/prospectus will be deemed modified, superseded or replaced for purposes of this proxy statement/prospectus to the extent that a statement contained in this proxy statement/prospectus or in any subsequently filed document that also is or is deemed to be incorporated by reference in this proxy statement/prospectus modifies, supersedes or replaces such statement. Any statement so modified, superseded or replaced will not be deemed, except as so modified, superseded or replaced, to constitute a part of this proxy statement/prospectus.
90
Kimco has supplied all information contained or incorporated by reference in this proxy statement/prospectus relating to Kimco, and Pan Pacific has supplied all such information relating to Pan Pacific.
If you are a stockholder, we may have sent you some of the documents incorporated by reference, but you can obtain any of them through us or the SEC. Documents incorporated by reference are available from us without charge, excluding all exhibits unless we have specifically incorporated by reference an exhibit in this proxy statement/prospectus. Stockholders may obtain documents incorporated by reference in this proxy statement/prospectus by requesting them in writing or by telephone from the appropriate party at the following addresses:
Kimco Realty Corporation 3333 New Hyde Park Road New Hyde Park, New York 11042 Attn: Bruce M. Kauderer Corporate Secretary Telephone: (516) 869-9000 |
Pan Pacific Retail Properties, Inc. 1631-B South Melrose Drive Vista, California 92081 Attn: Joseph B. Tyson, Corporate Secretary Telephone: (760) 727-1002 |
If you would like to request documents from us, please do so by September 18, 2006 to receive them before the special meeting.
You should rely only on the information contained or incorporated by reference in this proxy statement/prospectus to vote on the Pan Pacific proposal to approve the merger. We have not authorized anyone to provide you with information that is different from what is contained in this proxy statement/prospectus. This proxy statement/prospectus is dated August 23, 2006. You should not assume that the information contained in this proxy statement/prospectus is accurate as of any date other than August 23, 2006, and neither the mailing of the proxy statement/prospectus to stockholders nor the issuance of Kimco common stock in the merger shall create any implication to the contrary.
91
INDEX TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
F-1
On July 9, 2006, Kimco Realty Corporation (Kimco) and Pan Pacific Retail Properties, Inc. (Pan Pacific) (together the Companies) entered into a definitive merger agreement.
Under the terms of the agreement, Kimco will acquire all of the outstanding shares of Pan Pacific for a total merger consideration of $70.00 per share in cash. Kimco may elect to issue up to $10.00 per share of the total merger consideration in the form of Kimco common stock (Common Stock) to be based upon the 10-day average closing price of Kimco shares two trading days prior to the Pan Pacific stockholders meeting to approve the transaction. The election to issue Common Stock may be made up to 15 days prior to the Pan Pacific stockholders meeting and may be revoked by Kimco at any time if the revocation would not delay the stockholders meeting for more than 10 business days.
The historical consolidated financial statements of Kimco and Pan Pacific are contained in each of the Companys respective Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other information on file with the Securities and Exchange Commission and incorporated by reference into this document. The unaudited pro forma condensed consolidated financial statements should be read in conjunction with, and are qualified in their entirety by, the notes thereto and the historical consolidated financial statements of both Companys, including the respective notes thereto, which are incorporated by reference in this document.
The accompanying unaudited pro forma condensed consolidated balance sheet as of June 30, 2006 has been prepared to reflect the effect of the Pan Pacific merger with Kimco, as if such transaction had occurred on June 30, 2006. The accompanying unaudited pro forma condensed consolidated statements of income for the six months ended June 30, 2006 and the year ended December 31, 2005 have been prepared to reflect the effect of the Pan Pacific merger with Kimco, as if such transaction had occurred on January 1, 2005.
In the opinion of management, the pro forma condensed consolidated financial information provides for all significant adjustments necessary to reflect the effects of the above transaction. The pro forma adjustments and the purchase price allocation, as presented, are based on estimates and certain information that is currently available to Kimcos management.
The pro forma information is unaudited and is not necessarily indicative of the consolidated results that would have occurred if the transaction and adjustments reflected therein had been consummated in the period or on the date presented, or on any particular date in the future, nor does it purport to represent the financial position, results of operations or cash flows for future periods.
Kimco, after reasonable inquiry, is not aware of any material factors relating to the merger other than those stated above that would cause the reported financial information not to be indicative of future operating results.
The unaudited pro forma condensed consolidated financial statements do not give effect to any transactions other than those described above, nor the results of operations of Kimco or Pan Pacific subsequent to June 30, 2006.
The pro forma condensed consolidated financial information presents two scenarios, (Scenario I) Kimco acquires all of the outstanding shares of Pan Pacific for $60.00 cash per share and issues $10.00 per share of the total merger consideration in the form of Common Stock and (Scenario II) Kimco acquires all of the outstanding shares of Pan Pacific for $70.00 per share in cash.
The transaction has a total value of approximately $4.1 billion, including Pan Pacifics outstanding debt totaling approximately $1.2 billion and approximately $2.9 billion in equity value. Kimco has received financing commitments totaling up to $3.0 billion, which it may use to fund all or a portion of the total merger consideration.
F-2
Pan Pacifics portfolio totals 138 properties, encompassing approximately 22.6 million square feet.
The total purchase price is increased by intangible liabilities for the value attributable to the assumed mortgage debt premiums, senior note premiums and below market leases. The purchase price is determined as follows (in thousands, except per share data):
Scenario I | Scenario II | |||||
Outstanding Shares of Pan Pacific Stock (including 305 shares reflecting the assumed conversion of certain partnership units prior to the merger) |
41,080 | 41,080 | ||||
Cash consideration ($60 and $70 per share, respectively) |
$ | 2,464,800 | $ | 2,875,600 | ||
Common Stock consideration ($10 and $0 per share, respectively) |
410,800 | | ||||
Estimated merger costs (see below) |
56,364 | 56,364 | ||||
Total consideration |
2,931,964 | 2,931,964 | ||||
Assumption of Pan Pacifics liabilities, including debt premiums |
1,174,851 | 1,174,851 | ||||
Total Purchase Price |
$ | 4,106,815 | $ | 4,106,815 | ||
Total merger costs are estimated as follows: |
||||||
Legal, accounting, and other fees and costs |
$ | 24,100 | ||||
Real Estate transfer taxes |
10,751 | |||||
Debt assumption fees resulting from the merger |
2,826 | |||||
Termination, severance, change in control and other employee related costs |
18,687 | |||||
Total merger costs |
$ | 56,364 | ||||
F-3
KIMCO REALTY CORPORATION AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF JUNE 30, 2006
(Unaudited)
(In thousands)
Kimco Historical |
Pan Pacific Historical |
Pro Forma Merger Adjustments |
Kimco Pro Forma | |||||||||||||
Assets: |
||||||||||||||||
Real estate, net |
$ | 3,856,241 | $ | 1,973,736 | $ | 2,366,356 | A | $ | 8,196,333 | |||||||
Investment and advances in real estate joint ventures |
817,953 | 1,341 | | 819,294 | ||||||||||||
Real estate under development |
809,024 | | | 809,024 | ||||||||||||
Other real estate investments |
388,466 | | | 388,466 | ||||||||||||
Mortgages and other financing receivables |
142,017 | | | 142,017 | ||||||||||||
Cash and cash equivalents |
122,346 | 5,552 | (5,552 | ) | B | 122,346 | ||||||||||
Marketable securities |
203,479 | | | 203,479 | ||||||||||||
Accounts and notes receivable |
65,548 | 40,264 | (28,687 | ) | A | 77,125 | ||||||||||
Other assets |
356,776 | 65,619 | (46,915 | ) | A | 375,480 | ||||||||||
$ | 6,761,850 | $ | 2,086,512 | $ | 2,285,202 | $ | 11,133,564 | |||||||||
Liabilities & Stockholders Equity: |
||||||||||||||||
Notes payable |
$ | 2,389,037 | $ | 735,521 | $ | 2,557,327 | B | $ | 5,681,885 | |||||||
Mortgages payable |
488,111 | 356,604 | (45,242 | ) | C | 799,473 | ||||||||||
Construction loans payable |
261,706 | | | 261,706 | ||||||||||||
Dividends payable |
82,323 | | | 82,323 | ||||||||||||
Other liabilities |
338,594 | 37,073 | 319,631 | D | 695,298 | |||||||||||
3,559,771 | 1,129,198 | 2,831,716 | 7,520,685 | |||||||||||||
Minority interests |
308,799 | 18,146 | (18,146 | ) | E | 308,799 | ||||||||||
Commitments and contingencies |
||||||||||||||||
Stockholders Equity |
||||||||||||||||
Class F preferred stock |
700 | | | 700 | ||||||||||||
Common stock |
2,406 | 408 | (294 | ) | F | 2,520 | ||||||||||
Paid-in capital |
2,740,934 | 962,100 | (551,414 | ) | F | 3,151,620 | ||||||||||
Accumulated deficit |
| (23,340 | ) | 23,340 | F | | ||||||||||
Retained earnings |
100,213 | | | 100,213 | ||||||||||||
2,844,253 | 939,168 | (528,368 | ) | 3,255,053 | ||||||||||||
Accumulated other comprehensive income |
49,027 | | | 49,027 | ||||||||||||
2,893,280 | 939,168 | (528,368 | ) | 3,304,080 | ||||||||||||
$ | 6,761,850 | $ | 2,086,512 | $ | 2,285,202 | $ | 11,133,564 | |||||||||
The accompanying notes are an integral part of this pro forma condensed consolidated balance sheet.
F-4
KIMCO REALTY CORPORATION AND SUBSIDIARIES
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 2006
(Unaudited)