Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the terms and subject to the conditions set forth in the Merger
Agreement, at the effective time of the Merger (the "Effective Time"), each
share of Class A common stock, par value
The Company's board of directors (the "Company Board") unanimously (a) declared that the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement are fair to, advisable and in the best interests of Company and its stockholders, (b) approved the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (c) directed that the Merger and the other transactions contemplated by the Merger Agreement be submitted for consideration at a meeting of Company stockholders and (d) recommended the approval of the Merger and the other transactions contemplated by the Merger Agreement by Company stockholders.
At the closing of the Merger, the board trustees of Parent will consist of 13
members, nine of whom will be current trustees of Parent and four of whom have
been designated by the Company, including
At the Effective Time, by virtue of the Merger and without any further action on
the part of the Company, Parent or Merger Sub or the holders thereof, (i) each
Company option ("Company Option") that is outstanding and unexercised as of
immediately prior to the Effective Time (whether or not then vested) shall be
cancelled, terminated, and extinguished as of the Effective Time, and upon
cancellation thereof the holder of each such Company Option shall be entitled to
receive, in full satisfaction of the rights of such holder with respect thereto,
an amount in cash equal to the excess of (1) the product of the number of shares
of Company Common Stock subject to such Company Option as of immediately prior
to the Effective Time, multiplied by the Exchange Ratio, multiplied by the
Parent Common Share price, over (2) the product of the number of shares of
Company Common Stock subject to such Company Option as of immediately prior to
the Effective Time, multiplied by the exercise price per share of Company Common
Stock subject to such Company Option less any applicable withholding or other
taxes or other amounts required by law to be withheld) (it being understood
that, if the value determined in accordance with the Merger Agreement does not
exceed
--------------------------------------------------------------------------------
restrictions with respect thereto shall lapse as of immediately prior to the Effective Time, and as of the Effective Time, each such share of Company Common Stock will be cancelled and retired and automatically converted into the right to receive (upon the proper surrender of the Certificate or, in the case of a book-entry share, the proper surrender of such book-entry share) the sum of (A) the Merger Consideration, plus (B) the fractional consideration, if any (less any applicable withholding or other taxes or other amounts required by law to be withheld, including but not limited to withholding the issuance or delivery of Parent Common Shares otherwise payable as Merger Consideration to . . .
Item 5.02 Departure of Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
--------------------------------------------------------------------------------
percentage each such executive was on track to receive with respect to the formulaic company goals prior to the execution of the Merger Agreement to be paid on or within 30 days following the consummation of the Merger, (ii) such executive will earn 153% of the target amount of each currently outstanding award of performance-based restricted stock units for which the performance period had not ended (i.e., awards granted in 2019, 2020 and 2021), which was agreed upon based, in part, on an approximation of the amount of these awards that would have been earned based on the value of the Merger Consideration if the performance period had ended upon the execution of the Merger Agreement, (iii) in the event such executive's employment is terminated without cause or for good reason during 2021 in connection with or following the Merger, such executive's cash severance under the existing retention agreement with the Company will be calculated using an amount equal to the 2021 annual cash bonus to be paid to such executive as described above in clause (i) (instead of the greater of the target amount or the amount paid for the prior year) and such executive will not be entitled to payment of a pro rata bonus for 2021 as 2021 bonuses are to be paid as described above in clause (i), (iv) dividend equivalents on any of such executive's earned performance-based restricted stock units will be paid in cash instead of shares of Company Common Stock, and (v) the Merger will constitute a change in control under such executive's existing retention agreement with the Company and performance-based restricted stock unit awards.
Item 5.03 Amendments to Articles of Incorporation or By-laws; Change in Fiscal Year.
On
A copy of the amendment is attached as Exhibit 3.1 hereto and is hereby incorporated into this Current Report on Form 8-K by reference.
Item 8.01 Other Events.
On
FORWARD LOOKING STATEMENTS
This Current Report on Form 8-K contains certain "forward-looking" statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of the Exchange Act. The Company intends such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 and includes this statement for purposes of complying with the safe harbor provisions. Words such as "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates," "will," "should," "may," "projects," "could," "estimates" or variations of such words and other similar expressions are intended to identify such forward-looking statements, which generally are not historical in nature, but not all forward-looking statements include such identifying words. Forward-looking statements include, but are not limited to, statements related to the anticipated merger with Parent and the anticipated timing and benefits thereof; and other statements that are not historical facts. These forward-looking statements are based on the Company's current plans, objectives, estimates, expectations and intentions and inherently involve significant risks and uncertainties. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation, risks and uncertainties associated with: the possibility that the proposed transaction is not
--------------------------------------------------------------------------------
completed on the proposed terms or on the anticipated timeline, or at all,
including risks and uncertainties related to securing the necessary shareholder
approvals and satisfaction of other closing conditions to consummate the
acquisition; the occurrence of any event, change or other circumstance that
could give rise to the termination of the definitive transaction agreement
relating to the proposed transaction; risks related to diverting the attention
of the Company and Parent management from ongoing business operations; failure
to realize the expected benefits of the acquisition; unexpected costs or
liabilities relating to the proposed transaction; the risk of shareholder
litigation in connection with the proposed transaction, including resulting
expense or delay; the risk that the Company's business will not be integrated
successfully or that such integration may be more difficult, time-consuming or
costly than expected; risks related to future opportunities and plans for the
combined company, including the uncertainty of expected future financial
performance and results of the combined company following completion of the
acquisition; effects relating to the announcement of the acquisition or any
further announcements or the consummation of the acquisition on the market price
of Parent's common stock or the Company's common stock; the possibility that, if
Parent does not achieve the perceived benefits of the acquisition as rapidly or
to the extent anticipated by financial analysts or investors, the market price
of Parent's common stock could decline; general adverse economic and local real
estate conditions; the inability of major tenants to continue paying their rent
obligations due to bankruptcy, insolvency or a general downturn in their
business; increases in interest rates; foreign currency exchange rates;
increases in operating costs and real estate taxes; changes in the dividend
policy for Parent's common stock or preferred stock or Parent's ability to pay
dividends; impairment charges; unanticipated changes in the company's intention
or ability to prepay certain debt prior to maturity and/or hold certain
securities until maturity; adverse effects of pandemics or other health crises,
such as coronavirus disease 2019 (COVID-19); and other risks and uncertainties
affecting Parent and the Company, including those described from time to time
under the caption "Risk Factors" and elsewhere in Parent's and the Company's
IMPORTANT ADDITIONAL INFORMATION AND WHERE TO FIND IT
In connection with the proposed transaction, Parent will file with the
Investors and security holders may obtain copies of these documents free of
charge through the website maintained by the
--------------------------------------------------------------------------------
PARTICIPANTS IN THE SOLICITATION
The Company and Parent and their respective trustees, directors and executive
officers may be deemed to be participants in the solicitation of proxies from
Parent's shareholders and the Company's stockholders in connection with the
proposed transaction. Information about Parent's trustees and executive officers
and their ownership of Parent's common shares and units of limited partnership
interest of
NO OFFER OR SOLICITATION
This Current Report on Form 8-K shall not constitute an offer to sell or the
solicitation of an offer to buy any securities, nor shall there be any sale of
securities in any jurisdiction in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of
any such jurisdiction. No offering of securities shall be made except by means
of a prospectus meeting the requirements of Section 10 of the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number. Description 2.1 Agreement and Plan of Merger, dated as ofJuly 18, 2021 , by and among Kite Realty Group Trust,KRG Oak, LLC andRetail Properties of America, Inc. (1) 3.1 Amendment No. 3 to the Sixth Amended and Restated Bylaws ofRetail Properties of America, Inc. , datedJuly 17, 2021 99.1 Press Release issued by Kite Realty Group Trust andRetail Properties of America, Inc. onJuly 19, 2021 99.2 Investor Presentation Material 101.SCH Inline XRBL Taxonomy Extension Schema Document 101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document 101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document 101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document 101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document 104 Cover Page Interactive Data File (formatted as inline XBRL with applicable taxonomy extension information contained in Exhibits 101.*).). (1) (Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K). The Company agrees to furnish supplementally a copy of any omitted schedule to theSecurities and Exchange Commission upon request.
--------------------------------------------------------------------------------
© Edgar Online, source