================================================================================
AGREEMENT AND PLAN OF MERGER
among
KIMCO REALTY CORPORATION,
REIT SUB, INC.
and
THE PRICE REIT, INC.
Dated as of January 13, 1998
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TABLE OF CONTENTS
ARTICLE 1
THE MERGER................................................................... 1
1.1. The Merger.................................................... 1
1.2. The Closing................................................... 2
1.3. Effective Time................................................ 2
ARTICLE 2
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION.............................. 2
2.1. Charter....................................................... 2
2.2. Bylaws........................................................ 2
ARTICLE 3
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.......................... 3
3.1. Directors..................................................... 3
3.2. Officers...................................................... 3
ARTICLE 4
PRICE REIT STOCK............................................................. 3
4.1. Conversion of the Price REIT Stock............................ 3
4.2. Exchange of Certificates Representing Price REIT
Common Stock.................................................. 5
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PRICE REIT................................. 8
5.1. Existence; Good Standing; Authority; Compliance
With Law..................................................... 8
5.2. Authorization, Validity and Effect of Agreements............. 9
5.3. Capitalization............................................... 9
5.4. Subsidiaries................................................. 10
5.5. Other Interests.............................................. 10
5.6. No Violation................................................. 10
5.7. SEC Documents................................................ 11
5.8. Litigation................................................... 12
5.9. Absence of Certain Changes................................... 12
5.10. Taxes.......................................................... 13
5.11. Books and Records.............................................. 14
5.12. Properties..................................................... 14
5.13. Environmental Matters.......................................... 16
5.14. Employee Benefit Plans......................................... 16
5.15. Labor Matters.................................................. 17
5.16. No Brokers..................................................... 17
5.17. Opinion of Financial Advisor................................... 18
5.18. Kimco Stock Ownership.......................................... 18
5.19. Related Party Transactions..................................... 18
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5.20. Contracts and Commitments...................................... 18
5.21. Leases......................................................... 19
5.22. Investment Company Act of 1940................................. 19
5.23. Development Rights............................................. 19
5.24. Certain Payments Resulting From Transactions................... 19
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF KIMCO AND MERGER SUB ..................... 20
6.1. Existence; Good Standing; Authority; Compliance
With Law....................................................... 20
6.2. Authorization, Validity and Effect of Agreements............... 21
6.3. Capitalization................................................. 22
6.4. Subsidiaries................................................... 22
6.5. Other Interests................................................ 23
6.6. No Violation................................................... 23
6.7. SEC Documents.................................................. 23
6.8. Litigation..................................................... 24
6.9. Absence of Certain Changes..................................... 25
6.10. Taxes.......................................................... 25
6.11. Books and Records.............................................. 26
6.12. Properties..................................................... 26
6.13. Environmental Matters.......................................... 28
6.14. Employee Benefit Plans......................................... 28
6.15. Labor Matters.................................................. 29
6.16. No Brokers..................................................... 29
6.17. Opinion of Financial Advisor................................... 30
6.18. Price REIT Stock Ownership..................................... 30
6.19. Related Party Transactions..................................... 30
6.20. Contracts and Commitments...................................... 30
6.21. Leases......................................................... 30
6.22. Investment Company Act of 1940................................. 31
ARTICLE 7
COVENANTS.................................................................... 31
7.1. No Solicitation by Price REIT.................................. 31
7.2. No Solicitation by Kimco....................................... 33
7.3. Conduct of Businesses.......................................... 35
7.4. Meetings of Stockholders....................................... 39
7.5. Filings; Other Action.......................................... 41
7.6. Inspection of Records.......................................... 41
7.7. Publicity...................................................... 41
7.8. Registration Statement......................................... 41
7.9. Listing Application............................................ 42
7.10. Assumption of Debt and Leases.................................. 43
7.11. Affiliates of Price REIT....................................... 43
7.12. Expenses....................................................... 44
7.13. Indemnification................................................ 44
7.14. Employees...................................................... 45
7.15. Reorganization................................................. 46
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7.16. Advice of Changes.............................................. 47
7.17. Disqualifying Event............................................ 47
7.18. Governance..................................................... 47
ARTICLE 8
CONDITIONS................................................................... 47
8.1. Conditions to Each Party's Obligation to
Effect the Merger.............................................. 47
8.2. Conditions to Obligations of Price REIT to
Effect the Merger.............................................. 48
8.3. Conditions to Obligation of Kimco and Merger
Sub to Effect the Merger....................................... 49
ARTICLE 9
TERMINATION.................................................................. 51
9.1. Termination by Mutual Consent.................................. 51
9.2. Termination by Either Kimco or Price REIT...................... 51
9.3. Termination by Price REIT...................................... 51
9.4. Termination by Kimco........................................... 52
9.5. Certain Fees and Expenses Upon Effect
of Termination and Abandonment................................. 52
9.6. Extension; Waiver.............................................. 56
ARTICLE 10
GENERAL PROVISIONS........................................................... 56
10.1. Nonsurvival of Representations, Warranties
and Agreements............................................... 56
10.2. Notices........................................................ 56
10.3. Assignment; Binding Effect; Benefit............................ 57
10.4. Entire Agreement............................................... 57
10.5. Confidentiality................................................ 57
10.6. Amendment...................................................... 59
10.7. Governing Law.................................................. 59
10.8. Counterparts................................................... 59
10.9. Headings....................................................... 59
10.10. Interpretation................................................ 59
10.11. Extension; Waiver. .......................................... 60
10.12. Incorporation................................................. 60
10.13. Severability.................................................. 60
10.14. Enforcement of Agreement...................................... 60
10.15. Definitions................................................... 60
SCHEDULE 6.2.................................................................S-1
Exhibit A FORM OF ARTICLES SUPPLEMENTARY
Exhibit B FORM OF AFFILIATE LETTER
Exhibit C FORM OF OPINION OF BROWN & WOOD LLP
Exhibit D FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of January 13,
1998, among Kimco Realty Corporation, a Maryland corporation ("Kimco"), REIT
Sub, Inc., a Maryland corporation and a wholly owned subsidiary of Kimco
("Merger Sub"), and The Price REIT, Inc., a Maryland corporation ("Price REIT").
RECITALS
A. The Board of Directors of Kimco and the Board of Directors of Price
REIT have both determined that a business combination between Kimco and Price
REIT is in the best interests of their respective companies and stockholders and
presents an opportunity for their respective companies to achieve long-term
strategic and financial benefits, and accordingly have agreed to effect the
merger provided for herein upon the terms and subject to the conditions set
forth herein.
B. For federal income tax purposes, it is intended that the merger
provided for herein shall qualify as a reorganization within the meaning of
Section 368(a)(1) of the Internal Revenue Code of 1986, as amended (the "Code"),
and for financial accounting purposes shall be accounted for as a "purchase."
C. Each of Kimco and Price REIT has received a fairness opinion relating
to the transactions contemplated hereby as more fully described herein.
D. Kimco, Merger Sub and Price REIT desire to make certain
representations, warranties and agreements in connection with the merger.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
1.1. The Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 1.3), Price REIT shall be merged
with and into Merger Sub in accordance with this Agreement and the separate
corporate existence of Price REIT shall thereupon cease (the "Merger"). Merger
Sub shall be the surviving corporation in the Merger (sometimes hereinafter
referred to as the "Surviving Corporation"). The Merger shall have the
effects specified in Section 3-114 of the Maryland General Corporation Law (the
"MGCL").
1.2. The Closing. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") shall take place (a) at the offices of
Brown & Wood LLP, One World Trade Center, New York, New York, at 9:00 a.m.,
local time, on the third business day immediately following the day on which the
last to be fulfilled or waived of the conditions set forth in Article 8 shall be
fulfilled or waived in accordance herewith or (b) at such other time, date or
place as Kimco and Price REIT may agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date." As used herein, "business day"
shall mean a day on which banks are not required or authorized to close in The
City of New York.
1.3. Effective Time. If all the conditions to the Merger set forth in
Article 8 shall have been fulfilled or waived in accordance herewith and this
Agreement shall not have been terminated as provided in Article 9, the parties
hereto shall cause Articles of Merger meeting the requirements of the MGCL to be
properly executed, verified and delivered for filing in accordance with the MGCL
on the Closing Date. The Merger shall become effective upon the later of the
acceptance for record of the Articles of Merger by the State Department of
Assessments and Taxation of Maryland (the "SDAT") in accordance with the MGCL or
at such later time which the parties hereto shall have agreed upon and
designated in the Articles of Merger in accordance with the MGCL as the
effective time of the Merger (the "Effective Time").
ARTICLE 2
CHARTER AND BYLAWS OF THE SURVIVING CORPORATION
2.1. Charter. The Charter of Merger Sub in effect immediately
prior to the Effective Time shall be the Charter of the Surviving
Corporation, until duly amended in accordance with applicable law;
provided that, as of the Effective Time, Article Second of such
Charter shall be amended to read in its entirety as follows: "The
name of the corporation (which is hereinafter called the
"Corporation") is: The Price REIT, Inc."
2.2. Bylaws. The Bylaws of Merger Sub in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation, until duly
amended in accordance with applicable law.
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ARTICLE 3
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
3.1. Directors. The directors of Merger Sub immediately prior to the
Effective Time shall be the directors of the Surviving Corporation as of the
Effective Time.
3.2. Officers. The officers of Merger Sub immediately prior to the
Effective Time shall be the officers of the Surviving Corporation as of the
Effective Time.
ARTICLE 4
PRICE REIT STOCK
4.1. Conversion of the Price REIT Stock.
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(a) At the Effective Time, each share of the Common Stock, par value
$.01 per share, of Merger Sub outstanding immediately prior to the Effective
Time shall remain outstanding and shall represent one share of Common Stock, par
value $.01 per share, of the Surviving Corporation.
(b) At the Effective Time, each share of common stock, par value $.01
per share, of Price REIT (the "Price REIT Common Stock"), issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive, upon surrender of the certificate formerly representing such
share (a "Certificate") in accordance with Section 4.2: (A) in the event that
the sum of (i) the Kimco Average Closing Price (as hereinafter defined) and (ii)
$10.00 (the sum being referred to herein as the "Notional Value") is less than
or equal to $45.00: one share of Kimco Common Stock, par value $.01 per share
(the "Kimco Common Stock"), plus a number of depositary shares (the "Kimco
Depositary Shares"), each of which represents an interest in one-tenth of a
share of Kimco Class D Cumulative Convertible Preferred Stock, par value $1.00
per share, having the terms and conditions specified on Exhibit A hereto (the
"Kimco Class D Preferred Stock"), equal to a fraction, the numerator of which is
$45.00 less the Kimco Average Closing Price and the denominator of which is
$25.00; provided, however, that if the Kimco Average Closing Price is less than
$33.75, each share of Price REIT Common Stock shall be converted into the right
to receive 0.45 Kimco Depositary Shares plus a number of shares of Kimco Common
Stock equal to a fraction, the numerator of which is $33.75 and the denominator
of which is the Kimco Average Closing Price; and (B) if the Notional Value is
greater than $45.00: one share of Kimco Common Stock plus a number of Kimco
Depositary Shares equal to 0.4 minus a fraction, the numerator of which is the
Notional Value less $45.00 and the
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denominator of which is $50.00; provided, however, that in no event shall the
aggregate fractional number of Kimco Depositary Shares issued in respect of one
share of Price REIT Common Stock be less than 0.36. As used herein, the "Kimco
Average Closing Price" shall be the average of the closing sales prices of the
Kimco Common Stock on the New York Stock Exchange (the "NYSE") as reported in
The Wall Street Journal, or, if not reported thereby, by another authoritative
source, during the twenty (20) consecutive trading days ending on and including
the third trading day immediately preceding the date of the special meeting of
Kimco's stockholders contemplated by Section 7.4 hereof. The Kimco Common Stock
and the Kimco Depositary Shares to be received as consideration pursuant to the
Merger by each holder of Price REIT Common Stock are referred to herein as the
"Merger Consideration."
(c) As a result of the Merger and without any action on the part of the
holder thereof, all shares of Price REIT Common Stock shall cease to be
outstanding and shall be cancelled and retired and shall cease to exist, and
each holder of a certificate (a "Certificate") representing any shares of Price
REIT Common Stock shall thereafter cease to have any rights with respect to such
shares of Price REIT Common Stock, except the right to receive, without
interest, the Merger Consideration and cash in lieu of fractional shares of
Kimco Common Stock and/or Kimco Depositary Shares in accordance with Sections
4.1(b) and 4.2(e) hereto upon the surrender of such Certificate.
(d) Each share of Price REIT Common Stock issued and held in Price
REIT's treasury at the Effective Time, if any, shall, by virtue of the Merger,
cease to be outstanding and shall be cancelled and retired and shall cease to
exist without payment of any consideration therefor.
(e) Each option (a "Price REIT Stock Option") to purchase shares of
Price REIT Common Stock granted under the stock option agreements and under the
Price REIT 1993 Stock Option Plan or the Price REIT 1996 Directors' Stock Option
Plan (the "Price REIT Stock Option Plans") as set forth on Schedule 4.1(e) of
the Price REIT Disclosure Letter (as hereinafter defined), which is outstanding
immediately prior to the Effective Time, whether or not then exercisable or
vested, shall be satisfied and cancelled, at the Effective Time, and, in the
case of each such satisfied and cancelled Price REIT Stock Option, each holder
thereof shall be entitled to receive from Kimco and Kimco shall deliver or shall
cause to be delivered to such holder, as soon as practicable but in no event
later than five business days following the Effective Time, a number of shares
of the Kimco Common Stock and Kimco Depositary Shares in the same proportion as
such stock is issued as Merger Consideration pursuant to Section 4.1(b) (the
"Option Consideration") (and cash in lieu of fractional shares of Option
Consideration) having a value equal to (A) the product of (i) the amount by
which the value of the Merger Consideration payable per
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share of Price REIT Common Stock pursuant to Section 4.1(b), assuming such Price
REIT Stock Option had been exercised immediately prior to the Effective Time,
exceeds the per share exercise price of such Price REIT Stock Option and (ii)
the number of shares subject to such Price REIT Stock Option (the product of (i)
and (ii) being the "Option Spread"), minus (B) the product of (i) the Option
Spread and (ii) the sum of the Federal Withholding Rate and the State
Withholding Rate set forth opposite the name of such holder on Schedule 4.1(e)
of the Price REIT Disclosure Letter (which sum will be provided to Kimco at
least ten (10) business days prior to the Closing Date). The parties understand,
acknowledge and agree that the reduction in the Option Consideration, described
in Clause (B) of the previous sentence, is in full satisfaction of all federal
and state employment and withholding tax requirements applicable to such holder,
and that there shall be no reduction of any other compensation payable to such
holder as a result of the cancellation of such Price REIT Stock Option. For each
holder, Kimco shall remit to the Internal Revenue Service, in the manner
required by the applicable withholding requirements, the product of (x) the
Option Spread for such holder and (y) the percentage set forth under "Federal
Withholding Rate" opposite the name of such holder on Schedule 4.1(e) of the
Price REIT Disclosure Letter. For each holder, Kimco shall remit to the
California Franchise Tax Board (or such other appropriate state authority) in
the manner required by the applicable withholding requirements, the product of
(x) the Option Spread for such holder and (y) the percentage set forth under
"State Withholding Rate" opposite the name of such holder on Schedule 4.1(e) of
the Price REIT Disclosure Letter.
(f) Prior to the Effective Time, Price REIT shall use its best efforts
to (i) obtain any requisite consents or releases from holders of Price REIT
Stock Options and (ii) make any amendments to the terms of the Price REIT Stock
Option Plans or any award granted thereunder that are necessary to give effect
to the transactions contemplated by Section 4.1(e). Notwithstanding any other
provision of Section 4.1(e), delivery of the Option Consideration may be
withheld in respect of any option or award contemplated by Section 4.1(e) until
any necessary consents are obtained.
4.2. Exchange of Certificates Representing Price REIT
------------------------------------------------
Common Stock.
------------
(a) As of the Effective Time, Kimco shall deposit, or shall cause to be
deposited, with an exchange agent selected by Kimco, which shall be Kimco's
transfer agent or such other party reasonably satisfactory to Price REIT (the
"Exchange Agent"), for the benefit of the holders of shares of Price REIT Common
Stock, for exchange in accordance with this Article 4, certificates representing
the Merger Consideration and cash in lieu of fractional shares of the Merger
Consideration to be issued pursuant
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to Section 4.1 and paid pursuant to this Section 4.2 in exchange for outstanding
shares of Price Common Stock.
(b) Promptly after the Effective Time, Kimco shall cause the Exchange
Agent to mail to each holder of record of a Certificate or Certificates (i) a
letter of transmittal which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such other
provisions as Kimco may reasonably specify and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing the Merger Consideration and cash in lieu of fractional shares of
the Merger Consideration. Upon surrender of a Certificate for cancellation to
the Exchange Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, the holder of such
Certificate shall be entitled to receive in exchange therefor (x) certificates
representing the number of whole shares of the Merger Consideration and (y) a
check representing the amount of cash in lieu of fractional shares of the Merger
Consideration, if any, and unpaid dividends and distributions, if any, which
such holder has the right to receive in respect of the Certificate surrendered
pursuant to the provisions of this Article 4, after giving effect to any
required withholding tax, and the Certificate so surrendered shall forthwith be
cancelled. No interest will be paid or accrued on the cash in lieu of fractional
shares of the Merger Consideration and unpaid dividends and distributions, if
any, payable to holders of Certificates. In the event of a transfer of ownership
of Price REIT Common Stock which is not registered in the transfer records of
Price REIT, certificates representing the proper number of shares of the Merger
Consideration, together with a check for the cash to be paid in lieu of
fractional shares of the Merger Consideration, may be issued to such a
transferee if the Certificate representing shares of such Price REIT Common
Stock is presented to the Exchange Agent, accompanied by all documents required
to evidence and effect such transfer and to evidence that any applicable stock
transfer taxes have been paid.
(c) Notwithstanding any other provisions of this Agreement, no dividends
or other distributions on the Merger Consideration shall be paid with respect to
any shares of Price REIT Common Stock represented by a Certificate until such
Certificate is surrendered for exchange as provided herein. Subject to the
effect of applicable laws, following surrender of any such Certificate, there
shall be paid to the holder of the certificates representing whole shares of the
Merger Consideration issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of dividends or other distributions with a
record date after the Effective Time theretofore payable with respect to such
whole shares of the Merger Consideration and not paid, less the amount of any
withholding taxes which may be required thereon, and (ii) at
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the appropriate payment date, the amount of dividends or other distributions
with a record date after the Effective Time but prior to surrender and a payment
date subsequent to surrender payable with respect to such whole shares of the
Merger Consideration, less the amount of any withholding taxes which may be
required thereon.
(d) At and after the Effective Time, there shall be no transfers on the
stock transfer books of Price REIT of the shares of Price REIT Common Stock
which were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving Corporation, they
shall be cancelled and exchanged for certificates for whole shares of the Merger
Consideration and cash in lieu of fractional shares of the Merger Consideration,
if any, and unpaid dividends and distributions deliverable in respect thereof
pursuant to this Agreement in accordance with the procedures set forth in this
Article 4. Certificates surrendered for exchange by any person constituting an
"affiliate" of Price REIT for purposes of Rule 145(c) under the Securities Act
of 1933, as amended (the "Securities Act"), shall not be exchanged until Kimco
has received a written agreement from such person as provided in Section 7.11.
(e) No fractional shares of the Merger Consideration shall be issued
pursuant hereto. In lieu of the issuance of any fractional shares of the Merger
Consideration pursuant to Section 4.1(b) cash adjustments will be paid to
holders in respect of any fractional shares of the Merger Consideration that
would otherwise be issuable, and the amount of such cash adjustment shall be
equal to such fractional proportion of the Kimco Average Closing Price per share
of Kimco Common Stock and of the liquidation preference per depositary share of
Kimco Class D Preferred Stock, as applicable.
(f) Any portion of the Merger Consideration held by the Exchange Agent
(together with any cash in lieu of fractional shares of the Merger Consideration
and the proceeds of any investments thereof) that remains unclaimed by the
former stockholders of Price REIT one year after the Effective Time shall be
delivered to the Surviving Corporation. Any former stockholders of Price REIT
who have not theretofore complied with this Article 4 shall thereafter look only
to the Surviving Corporation for payment of their shares constituting the Merger
Consideration, cash in lieu of fractional shares of the Merger Consideration and
unpaid dividends and distributions on the Merger Consideration deliverable in
respect of each share of Price REIT Common Stock such stockholder holds as
determined pursuant to this Agreement, in each case, without any interest
thereon.
(g) None of Kimco, Price REIT, the Exchange Agent or any other person
shall be liable to any former holder of shares of Price REIT Common Stock for
any amount properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
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(h) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent
or the Surviving Corporation will issue in exchange for such lost, stolen or
destroyed Certificate the Merger Consideration and cash in lieu of fractional
shares of Kimco Class D Preferred Stock, and unpaid dividends and distributions
on shares of the Merger Consideration as provided in Section 4.2(c), deliverable
in respect thereof pursuant to this Agreement.
(i) The holders of shares of Price REIT Common Stock shall not be
entitled to appraisal rights as a result of the Merger.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PRICE REIT
Except as set forth in the disclosure letter delivered at or prior to
the execution hereof to Kimco, which shall refer to the relevant Sections of
this Agreement (the "Price REIT Disclosure Letter"), Price REIT represents and
warrants to Kimco as follows:
5.1. Existence; Good Standing; Authority; Compliance With Law. Price
REIT is a corporation duly incorporated, validly existing and in good standing
under the laws of Maryland. Price REIT is duly licensed or qualified to do
business as a foreign corporation and is in good standing under the laws of any
other state of the United States in which the character of the properties owned
or leased by it therein or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified would not
have a material adverse effect on the business, assets, results of operations or
condition (financial or otherwise) of Price REIT and its Subsidiaries taken as a
whole (a "Price REIT Material Adverse Effect"). Price REIT has all requisite
corporate power and authority to own, operate, lease and encumber its properties
and carry on its business as now conducted. Each of Price REIT's Subsidiaries is
a corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the corporate, company or partnership power
and authority to own its properties and to carry on its business as it is now
being conducted, and is duly qualified to do business and is in good standing in
each jurisdiction in which the ownership of its property or the conduct of its
business requires such qualification, except for jurisdictions in which such
failure to be so qualified or to be in good standing would not have a Price REIT
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Material Adverse Effect. Neither Price REIT nor any of its Subsidiaries is in
violation of any order of any court, governmental authority or arbitration board
or tribunal, or any law, ordinance, governmental rule or regulation to which
Price REIT or any of its Subsidiaries or any of their respective properties or
assets is subject, where such violation would have a Price REIT Material Adverse
Effect. To the knowledge of the executive officers of Price REIT, Price REIT and
its Subsidiaries have obtained all licenses, permits and other authorizations
and have taken all actions required by applicable law or governmental
regulations in connection with their business as now conducted, where the
failure to obtain any such item or to take any such action would have a Price
REIT Material Adverse Effect. Copies of Price REIT's and its Subsidiaries'
charter, bylaws, organization documents and partnership and joint venture
agreements have been previously delivered or made available to Kimco and such
documents are listed in the Price REIT Disclosure Letter and are true and
correct. For the purposes of the immediately preceding sentence, the term
"Subsidiary" shall include the entities set forth on Schedule 5.5 of the Price
REIT Disclosure Letter.
5.2. Authorization, Validity and Effect of Agreements. Price REIT has
the requisite corporate power and authority to enter into the transactions
contemplated hereby and to execute and deliver this Agreement. Subject only to
the approval of this Agreement and the transactions contemplated hereby by the
affirmative vote of holders of a majority of the outstanding shares of Price
REIT Common Stock, the consummation by Price REIT of this Agreement and the
transactions contemplated hereby has been duly authorized by all requisite
corporate action on the part of Price REIT. This Agreement constitutes the valid
and legally binding obligations of Price REIT, enforceable against Price REIT in
accordance with its respective terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
5.3. Capitalization. The authorized capital stock of Price REIT consists
of 25,000,000 shares of Price REIT Common Stock and 2,000,000 shares of
preferred stock, par value $.01 per share (the "Price REIT Preferred Stock"). As
of January 12, 1998, there were 11,700,793 shares of Price REIT Common Stock
issued and outstanding and no shares of Price REIT Preferred Stock issued and
outstanding. Price REIT has no outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of Price REIT on any matter. All such issued and outstanding
shares of Price REIT Common Stock are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights. Other than the Price REIT
Stock Options, there are not at the date of this Agreement any existing options,
warrants, calls, subscriptions, convertible securities, or other rights,
agreements or commitments which obligate Price REIT or any
9
of its Subsidiaries to issue, transfer or sell any shares of capital stock of
Price REIT or any of its Subsidiaries. After the Effective Time, the Surviving
Corporation will have no obligation to issue, transfer or sell any shares of
capital stock or other equity interest of Price REIT or the Surviving
Corporation pursuant to any Price REIT Benefit Plan (as defined in Section
5.14).
5.4. Subsidiaries. Price REIT owns directly or indirectly each of the
outstanding shares of capital stock or all of the partnership or other equity
interests of each of Price REIT's Subsidiaries. Each of the outstanding shares
of capital stock of or other equity interests in each of Price REIT's
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable,
and is owned, directly or indirectly, by Price REIT free and clear of all liens,
pledges, security interests, claims or other encumbrances other than liens
imposed by local law which are not material. The following information for each
Subsidiary of Price REIT is set forth on the Price REIT Disclosure Letter, if
applicable: (i) its name and jurisdiction of incorporation or organization; (ii)
its authorized capital stock or share capital; and (iii) the name of each
stockholder or owner of an equity interest and the number of issued and
outstanding shares of capital stock or share capital or percentage ownership for
non-corporate entities held by it.
5.5. Other Interests. Except for interests in the Price REIT
Subsidiaries, neither Price REIT nor any of its Subsidiaries owns directly or
indirectly any interest or investment (whether equity or debt) in any
corporation, partnership, joint venture, business, trust or entity (other than
investments in short-term investment securities).
5.6. No Violation. Except as set forth on Schedule 5.6 of the Price REIT
Disclosure Letter, neither the execution and delivery by Price REIT of this
Agreement nor the consummation by Price REIT of the transactions contemplated
hereby in accordance with the terms hereof, will (i) conflict with or result in
a breach of any provisions of the charter or bylaws of Price REIT, (ii) result
in a breach or violation of, a default under, or the triggering of any payment
or other material obligations pursuant to, or, except as otherwise contemplated
by Section 4.1(e), accelerate vesting under, any of the Price REIT Stock Option
Plans, or any grant or award made under any of the foregoing, (iii) violate, or
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance required by, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties of Price REIT or its Subsidiaries under, or result in
being declared void, voidable or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage,
10
indenture, deed of trust or any license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which Price REIT or
any of its Subsidiaries is a party, or by which Price REIT or any of its
Subsidiaries or any of their properties is bound or affected, except for any of
the foregoing matters which, individually or in the aggregate, would not have a
Price REIT Material Adverse Effect, or (iv) require any consent, approval or
authorization of, or declaration, filing or registration with, any domestic
governmental or regulatory authority, other than the filings provided for in
Article 1, any filings required by the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act or applicable state securities
and "Blue Sky" laws (collectively, the "Regulatory Filings") and filings with
the NYSE, or such other filings which, if not obtained or made, would not
prevent or delay in any material respect the consummation of any of the
transactions contemplated by this Agreement or otherwise prevent Price REIT from
performing its obligations under this Agreement in any material respect.
5.7. SEC Documents. Price REIT has delivered or made available to Kimco
each registration statement, report, proxy statement or information statement
and all exhibits thereto prepared by it or relating to its properties (including
registration statements covering mortgage pass-through certificates) since
January 1, 1995, which are set forth on the Price REIT Disclosure Letter, each
in the form (including exhibits and any amendments thereto) filed with the
United States Securities and Exchange Commission (the "SEC") (collectively, the
"Price REIT Reports"). The Price REIT Reports, which were filed with the SEC in
a timely manner, constitute all forms, reports and documents required to be
filed by Price REIT under the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder (the "Securities Laws"). As of their
respective dates, the Price REIT Reports (i) complied as to form in all material
respects with the applicable requirements of the Securities Laws and (ii) did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. Each of the consolidated balance sheets of Price REIT included in or
incorporated by reference into the Price REIT Reports (including the related
notes and schedules) fairly presents the consolidated financial position of
Price REIT and its Subsidiaries as of its date and each of the consolidated
statements of income, retained earnings and cash flows of Price REIT included in
or incorporated by reference into the Price REIT Reports (including any related
notes and schedules) fairly presents the results of operations, retained
earnings or cash flows, as the case may be, of Price REIT and its Subsidiaries
for the periods set forth therein (subject, in the case of unaudited statements,
to normal year-end audit adjustments which would not be material in amount or
effect), in each case in accordance with generally accepted accounting
11
principles consistently applied during the periods involved, except as may be
noted therein and except, in the case of the unaudited statements, as permitted
by Form 10-Q of the SEC. Except as and to the extent set forth on the
consolidated balance sheet of Price REIT and its Subsidiaries at September 30,
1997, including all notes thereto, or as set forth in the Price REIT Reports,
neither Price REIT nor any of its Subsidiaries has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
that would be required to be reflected on, or reserved against in, a balance
sheet of Price REIT or in the notes thereto, prepared in accordance with
generally accepted accounting principles consistently applied other than any
such liabilities or obligations that, individually or in the aggregate, would
not have a Price REIT Material Adverse Effect.
5.8. Litigation. There are (i) no continuing orders, injunctions or
decrees of any court, arbitrator or governmental authority to which Price REIT
or any of its Subsidiaries is a party or by which any of its properties or
assets are bound or, to the knowledge of Price REIT, to which any of its
directors, officers, employees or agents is a party or by which any of their
properties or assets are bound and (ii) no actions, suits or proceedings pending
against Price REIT or any of its Subsidiaries or, to the knowledge of Price
REIT, against any of its directors, officers, employees or agents or, to the
knowledge of Price REIT, threatened in writing against Price REIT or any of its
Subsidiaries or against any of its directors, officers, employees or agents, at
law or in equity, or before or by any federal or state commission, board,
bureau, agency or instrumentality, that in the case of clauses (i) or (ii) above
are reasonably likely, individually or in the aggregate, to have a Price REIT
Material Adverse Effect.
5.9. Absence of Certain Changes. Except as disclosed in the Price REIT
Reports filed with the SEC prior to the date hereof, since September 30, 1997,
Price REIT and its Subsidiaries have conducted their business only in the
ordinary course of such business and there has not been (i) any Price REIT
Material Adverse Effect, (ii) as of the date hereof, any declaration, setting
aside or payment of any dividend or other distribution with respect to the Price
REIT Common Stock, (iii) any commitment, contractual obligation, borrowing,
capital expenditure or transaction (each, a "Commitment") entered into by Price
REIT or any of its Subsidiaries, other than Commitments made in the ordinary
course of business none of which exceed $250,000 individually or $1,000,000 in
the aggregate, or (iv) any material change in Price REIT's accounting
principles, practices or methods.
5.10. Taxes. (a) Price REIT and each of its Subsidiaries (i) has timely
filed all federal, state, local and foreign tax returns required to be filed by
any of them for tax years ended prior to the date of this Agreement or requests
for extensions have been timely filed and any such request has been granted and
has not
12
expired and all such returns are complete in all material respects, (ii) has
paid or accrued all taxes shown to be due and payable on such returns or which
have become due and payable pursuant to any assessment, deficiency notice,
30-day letter or other notice received by it and (iii) has properly accrued all
such taxes for such periods subsequent to the periods covered by such returns.
The federal, state or local income or franchise tax returns of Price REIT and
each of its Subsidiaries, have not been examined by the appropriate taxing
authority, except for such examinations that, individually or in the aggregate,
would not have a Price REIT Material Adverse Effect. Neither Price REIT nor any
of its Subsidiaries has executed or filed with the Internal Revenue Service (the
"IRS") or any other taxing authority any agreement now in effect extending the
period for assessment or collection of any income or other taxes. Neither Price
REIT nor any of its Subsidiaries is a party to any pending action or proceeding
by any governmental authority for assessment or collection of taxes, and no
claim for assessment or collection of taxes has been asserted against it. True,
correct and complete copies of all federal, state and local income or franchise
tax returns filed by Price REIT and each of its Subsidiaries and all
communications relating thereto have been delivered to Kimco or made available
to representatives of Kimco. The most recent audited financial statements
contained in the Price REIT Reports reflect an adequate reserve for all material
Taxes payable by Price REIT and the Price REIT Subsidiaries for all taxable
periods and portions thereof through the date of such financial statements.
Since the date of such financial statements, Price REIT has incurred no
liability for taxes under Sections 857(b), 860(c) or 4981 of the Code, including
without limitation, any tax arising from a prohibited transaction described in
Section 857(b)(6) of the Code, and neither Price REIT nor any Price REIT
Subsidiary has incurred any liability for Taxes other than in the ordinary
course of business. As used in this Agreement, "Taxes" shall include all
federal, state, local and foreign income, property, sales, franchise,
employment, excise and other taxes, tariffs or governmental charges of any
nature whatsoever, together with penalties, interest or additions to Tax with
respect thereto.
(b) Price REIT (i) has elected to be taxed as a real estate investment
trust (a "REIT") within the meaning of the Code commencing with its taxable year
ended December 31, 1991, (ii) has been subject to taxation as a REIT within the
meaning of Section 856 of the Code and has satisfied all requirements to qualify
as a REIT for all taxable years commencing with its taxable year ended December
31, 1991 through its taxable year ended December 31, 1997, (iii) has operated
since December 31, 1997 to the date of this representation, and intends to
continue to operate, in such a manner so as to qualify as a REIT for its taxable
year ending the Closing Date, and (iv) has not taken or omitted to take any
action which would reasonably be expected to result in a challenge to its status
as a REIT, and to the knowledge of the executive officers of
13
Price REIT, no such challenge is pending or threatened. Price REIT represents
that each of its corporate Subsidiaries is a Qualified REIT Subsidiary as
defined in Section 856(i) of the Code (as in effect prior to the enactment of
the Taxpayer Relief Act of 1997), and that each partnership, limited liability
company, joint venture or other legal entity in which Price REIT (either
directly or indirectly) owns any of the capital stock or other equity interests
thereof has been treated since its formation and continues to be treated for
federal income tax purposes as a partnership and not as an association taxable
as a corporation.
5.11. Books and Records.
-----------------
(a) The books of account and other financial records of Price REIT and
its Subsidiaries are in all material respects true, complete and correct, have
been maintained in accordance with good business practices, and are accurately
reflected in all material respects in the financial statements included in the
Price REIT Reports.
(b) The minute books and other records of Price REIT and its
Subsidiaries, have been made available to Kimco, contain in all material
respects accurate records of all meetings and accurately reflect in all material
respects all other corporate action of the stockholders, members and directors
and any committees of the Board of Directors of Price REIT and its Subsidiaries.
5.12. Properties. Price REIT and its Subsidiaries own fee simple title
to, or hold ground leases in, each of the real properties identified in the
Price REIT Disclosure Letter (the "Price REIT Properties"), which are all of the
real estate properties owned or leased by them. The Price REIT Properties are
not subject to any rights of way, written agreements (other than leases), laws,
ordinances and regulations affecting building use or occupancy, or reservations
of an interest in title (collectively, "Property Restrictions"), except for (i)
liens, mortgages or deeds of trust, claims against title, charges which are
liens, security interests or other encumbrances on title ("Encumbrances") and
Property Restrictions set forth in the Price REIT Disclosure Letter, (ii)
Property Restrictions imposed or promulgated by law or any governmental body or
authority with respect to real property, including zoning regulations, provided
such Property Restrictions do not adversely affect in any material respect the
current use of the applicable property, (iii) Encumbrances and Property
Restrictions disclosed on existing title reports or current surveys (in either
case copies of which title reports and surveys have been delivered or made
available to Kimco), and (iv) mechanics', carriers', workmen's, repairmen's
liens and other Encumbrances, Property Restrictions and other limitations of any
kind, if any, which, individually or in the aggregate, do not materially detract
from the value of or materially interfere with the present use of any of the
Price REIT Properties subject thereto or affected
14
thereby, and do not otherwise materially impair business operations conducted by
Price REIT and its Subsidiaries and which have arisen or been incurred only in
the ordinary course of business. Valid policies of title insurance have been
issued insuring Price REIT's or any of its Subsidiaries' fee simple title to the
Price REIT Properties in amounts at least equal to the purchase price thereof,
subject only to the matters set forth therein or disclosed above and on the
Price REIT Disclosure Letter, and such policies are, at the date hereof, in full
force and effect and there are no pending claims against any such policy. Any
material certificate, permit or license from any governmental authority having
jurisdiction over any of the Price REIT Properties and any agreement, easement
or other right which is necessary to permit the material lawful use and
operation of the buildings and improvements on any of the Price REIT Properties
or which is necessary to permit the lawful use and operation of all driveways,
roads and other means of egress and ingress, which Price REIT has rights to, to
and from any of the Price REIT Properties which are currently occupied has been
obtained and is in full force and effect, and, to the best knowledge of Price
REIT, there exists no pending threat of modification or cancellation of any of
same. Price REIT is not in receipt of any written notice of any violation of any
material federal, state or municipal law, ordinance, order, regulation or
requirement affecting any portion of any of the Price REIT Properties issued by
any governmental authority other than such violations which would not reasonably
be expected to have a Price REIT Material Adverse Effect. To the knowledge of
Price REIT, (A) there are no material structural defects relating to the Price
REIT Properties, (B) there are no Price REIT Properties whose building systems
are not in working order in any material respect (except for temporary and
routine maintenance and operating systems failures which in any event are the
subject of adequate pending repair procedures), (C) there is no physical damage
to any Price REIT Property in excess of $100,000 for which there is no insurance
in effect covering the cost of the restoration as of the date hereof, or (D) no
current renovation or restoration to any Price REIT Property is underway or is
being contemplated the cost of which exceeds $100,000, except as set forth in
Schedule 5.12 of the Price REIT Disclosure Letter. Neither Price REIT nor any of
its Subsidiaries have received any written notice to the effect that (x) any
condemnation or material rezoning proceedings are pending or threatened with
respect to any of the Price REIT Properties or (y) any zoning, building or
similar law, code, ordinance, order or regulation is or will be violated in any
material respect by the continued maintenance, operation or use of any buildings
or other improvements on any of the Price REIT Properties as currently
maintained, used or operated or by the continued maintenance, operation or use
of the parking areas as currently maintained, used or operated. All work to be
performed, payments to be made and actions to be taken by Price REIT or its
Subsidiaries prior to the date hereof pursuant to any agreement entered into
with a governmental body or authority in connection with a site approval,
15
zoning reclassification or other similar action relating to the Price REIT
Properties (e.g., Local Improvement District, Road Improvement District,
Environmental Mitigation) has been performed, paid or taken, as the case may be,
and Price REIT is not aware of any planned or proposed work, payments or actions
that may be required after the date hereof pursuant to such agreements.
5.13. Environmental Matters. To the actual knowledge of the executive
officers of Price REIT, none of Price REIT, any of its Subsidiaries or any other
person has caused or permitted (a) the unlawful presence of any Hazardous
Materials on any of the Price REIT Properties, or (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials to have occurred or be
presently occurring on or from the Price REIT Properties as a result of any
construction on or operation and use of such properties, which presence or
occurrence would, individually or in the aggregate, have a Price REIT Material
Adverse Effect; and in connection with the construction on or operation and use
of the Price REIT Properties, Price REIT and its Subsidiaries have not failed to
comply with all applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials, except where the failure to so comply would not
reasonably be expected to have a Price REIT Material Adverse Effect.
5.14. Employee Benefit Plans. All employee benefits plans and other
benefit programs, policies and arrangements covering employees of Price REIT and
the Price REIT Subsidiaries (the "Price REIT Benefit Plans") are listed in the
Price REIT Disclosure Letter. True and complete copies of the Price REIT Benefit
Plans have been made available to Kimco. To the extent applicable, the Price
REIT Benefit Plans comply, in all material respects, with the requirements of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
the Code, and any Price REIT Benefit Plan intended to be qualified under Section
401(a) of the Code has been determined by the IRS to be so qualified. No Price
REIT Benefit Plan is or has been covered by Title IV of ERISA or Section 412 of
the Code. Neither any Price REIT Benefit Plan nor any fiduciary thereof nor
Price REIT has incurred any material liability or penalty under Section 4975 of
the Code or Section 502(i) of ERISA. Each Price REIT Benefit Plan has been
maintained and administered in all material respects in compliance with its
terms and with ERISA and the Code to the extent applicable thereto. To the
knowledge of the executive officers of Price REIT, there are no pending or
anticipated claims against or otherwise involving any of the Price REIT Benefit
Plans and no suit, action or other litigation (excluding claims for benefits
incurred in the ordinary course of Price REIT Benefit Plan activities) has been
brought against or with respect to any such Price REIT Benefit Plan, except for
any of the foregoing which would not have a Price REIT Material Adverse Effect.
All material contributions required to be made as
16
of the date hereof to the Price REIT Benefit Plans have been timely made or
provided for. Neither Price REIT nor any entity under "common control" with
Price REIT within the meaning of ERISA Section 4001 has contributed to, or been
required to contribute to, any "multiemployer plan" (as defined in Sections
3(37) and 4001(a)(3) of ERISA). Price REIT does not maintain or contribute to
any plan, program, policy or arrangement which provides or has any liability to
provide life insurance, medical or other employee welfare benefits or
supplemental pension benefits to any employee or former employee upon his
retirement or termination of employment, except as required under Section 4890B
of the Code, and Price REIT has never represented, promised or contracted
(whether in oral or written form) to any employee or former employee that such
benefits would be provided. Except as disclosed in the Price REIT Reports, the
execution of, and performance of the transactions contemplated in, this
Agreement will not (either alone or upon the occurrence of any additional
subsequent events) constitute an event under any benefit plan, program, policy,
arrangement or agreement or any trust or loan that will or may result in any
payment (whether of severance pay or otherwise), acceleration, forgiveness of
indebtedness, vesting, distribution, increase in benefits or obligations to fund
benefits with respect to any employee, director or consultant of Price REIT or
any of its Subsidiaries.
5.15. Labor Matters. Neither Price REIT nor any of its Subsidiaries is a
party to, or bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor union organization. There
is no unfair labor practice or labor arbitration proceeding pending or, to the
knowledge of Price REIT, threatened against Price REIT or any of its
Subsidiaries relating to their business, except for any such proceeding which
would not have a Price REIT Material Adverse Effect. To the knowledge of the
executive officers of Price REIT, there are no organizational efforts with
respect to the formation of a collective bargaining unit presently being made or
threatened involving employees of Price REIT or any of its Subsidiaries.
5.16. No Brokers. Price REIT has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of Price REIT or Kimco to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby,
except that Price REIT has retained Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") as its financial advisor, pursuant to an
engagement letter dated November 20, 1997, a true and correct copy of which has
been delivered to Kimco prior to the date hereof. Other than the foregoing
arrangements, Price REIT is not aware of any claim for payment of any finder's
fees, brokerage or agent's commissions or other like payments in connection with
the negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby.
17
5.17. Opinion of Financial Advisor. Price REIT has received the opinion
of Merrill Lynch to the effect that, as of the date hereof, the Merger
Consideration to be received by the holders of Price REIT Common Stock pursuant
to the Merger is fair to such holders from a financial point of view.
5.18. Kimco Stock Ownership. Neither Price REIT nor any of its
Subsidiaries owns any shares of Kimco Common Stock or other securities
convertible into any shares of Kimco Common Stock.
5.19. Related Party Transactions. Set forth in the Price REIT Disclosure
Letter is a list of all arrangements, agreements and contracts entered into by
Price REIT or any of its Subsidiaries with any executive officer, director or
family members or affiliates of such persons required to be disclosed in the
Price REIT Reports (including reports and filings analogous to the Price REIT
Reports prior to January 1, 1995) pursuant to the rules and regulations of the
SEC. The copies of such documents, all of which have previously been delivered
or made available to Kimco, are listed on the Price REIT Disclosure Letter and
are true and correct.
5.20. Contracts and Commitments. The Price REIT Disclosure Letter or the
Price REIT Reports set forth (i) all notes, debentures, bonds and other evidence
of indebtedness which are secured or collateralized by mortgages, deeds of trust
or other security interests in the Price REIT Properties or personal property of
Price REIT and its Subsidiaries and (ii) each Commitment entered into by Price
REIT or any of its Subsidiaries which may result in total payments or liability
in excess of $500,000, excluding tenant reimbursements and leases entered into
in the ordinary course. Copies of the foregoing have been previously delivered
or made available to Kimco, are listed on the Price REIT Disclosure Letter or
included in the Price REIT Reports and are true and correct. Each of the
contracts and Commitments described in the preceding sentence is in full force
and effect; none of Price REIT or any of its Subsidiaries has received any
notice of a default that has not been cured under any of the contracts and
Commitments described in the preceding sentence or is in default respecting any
payment obligations thereunder beyond any applicable grace periods; and, to
Price REIT's knowledge, none of the other parties to such contracts and
Commitments are in default with respect to any obligations, which individually
or in the aggregate are material, thereunder. All joint venture agreements to
which Price REIT or any of its Subsidiaries is a party are set forth on the
Price REIT Disclosure Letter and Price REIT or its Subsidiaries are not in
default with respect to any obligations, which individually or in the aggregate
are material, thereunder.
18
5.21. Leases.
------
(a) The Price REIT Disclosure Letter sets forth a list of all Price REIT
Properties that are subject to or encumbered by any non-residential lease
accounting for 1% or more of Price REIT's rental revenues for the most recent
period reflected in the financial statements included in the Price REIT Reports
(a "Material Price REIT Lease") and, with respect to each such Material Price
REIT Lease, sets forth the following information:
(i) the name of the lessee;
(ii) the expiration date of the lease;
(iii) the amount (or method of determining the amount) of monthly
rentals due under the lease; and
(iv) with respect to any Material Price REIT Lease with a
remaining term of less than 24 months, whether the lessee has notified
Price REIT in writing of any intention not to renew, or seek to renew,
the lease.
(b) Except as set forth in the Price REIT Disclosure Letter, (i) all
rental payments due under each Material Price REIT Lease have been paid during
the period January 1, 1997 through November 30, 1997, and (ii) to Price REIT's
knowledge, no lessee is in material default, and no condition or event exists
which with the giving of notice or the passage of time, or both, would
constitute a material default by any lessee, under any Material Price REIT
Lease.
5.22. Investment Company Act of 1940. Neither Price REIT nor any of its
Subsidiaries is, or at the Effective Time will be, required to be registered
under the Investment Company Act of 1940, as amended.
5.23. Development Rights. Set forth in the Price REIT Disclosure Letter
is a list of all agreements entered into by Price REIT or any of its
Subsidiaries relating to the development or construction of retail shopping
center or other real estate properties. The copies of such agreements, all of
which have previously been delivered or made available to Kimco, are listed on
the Price REIT Disclosure Letter and are true and correct.
5.24. Certain Payments Resulting From Transactions. Except as set forth
in the Price REIT Disclosure Letter, the execution of, and performance of the
transactions contemplated by, this Agreement will not (either alone or upon the
occurrence of any additional or subsequent events) (i) constitute an event under
any Price REIT Benefit Plan, policy, practice, agreement or other arrangement or
any trust or loan (the "Employee Arrangements") that will or may result in any
payment (whether of severance pay or otherwise),
19
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any employee, director
or consultant of Price REIT or any of its Subsidiaries or (ii) result in the
triggering or imposition of any restrictions or limitations on the right of
Price REIT, Merger Sub or Kimco to amend or terminate any Employee Arrangement
and receive the full amount of any excess assets remaining or resulting from
such amendment or termination, subject to applicable taxes. Except as set forth
in the Price REIT Disclosure Letter, no payment or benefit which will be
required to be made pursuant to the terms of any agreement, commitment or Price
REIT Benefit Plan, as a result of the transactions contemplated by this
Agreement, to any officer, director or employee of Price REIT or any of its
Subsidiaries, will be characterized as an "excess parachute payment" within the
meaning of Section 280G(b)(l) of the Code.
5.25. State Takeover Statutes. Assuming that presently or at any time
within two years prior to the date hereof (i) neither Kimco nor Merger Sub is or
has been an "interested stockholder" of Price REIT, and (ii) neither Kimco nor
Merger Sub has been an "affiliate of an interested stockholder" of Price REIT,
all within the meaning of Section 3-601 of the MGCL, Price REIT has taken all
action necessary to exempt the transactions contemplated by this Agreement from
the operation of any applicable "fair price," "moratorium," "control share
acquisition" or any other applicable anti-takeover statute or similar statute
enacted under the state or federal laws of the United States or similar statute
or regulation.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF KIMCO AND MERGER SUB
Except as set forth in the disclosure letter delivered at or prior to
the execution hereof to Price REIT, which shall refer to the relevant Sections
of this Agreement (the "Kimco Disclosure Letter"), Kimco and Merger Sub
represent and warrant to Price REIT as follows:
6.1. Existence; Good Standing; Authority; Compliance With Law. Kimco and
Merger Sub are corporations, and each is duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation. Kimco is
duly licensed or qualified to do business as a foreign corporation and is in
good standing under the laws of any other state of the United States in which
the character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so qualified would not have a material adverse effect on the
business, assets, results of operations or condition (financial or otherwise) of
Kimco and its Subsidiaries taken as a whole (a "Kimco Material Adverse Effect").
Kimco has all requisite corporate power and
20
authority to own, operate, lease and encumber its properties and carry on its
business as it is now being conducted. Each of Kimco's Subsidiaries is a
corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the corporate, company or partnership power
and authority to own its properties and to carry on its business as it is now
being conducted, and is duly qualified to do business and is in good standing in
each jurisdiction in which the ownership of its property or the conduct of its
business requires such qualification, except for jurisdictions in which such
failure to be so qualified or to be in good standing would not have a Kimco
Material Adverse Effect. Neither Kimco nor any or its Subsidiaries is in
violation of any order of any court, governmental authority or arbitration board
or tribunal, or any law, ordinance, governmental rule or regulation to which
Kimco or any of its Subsidiaries or any of their respective properties or assets
is subject, where such violation would have a Kimco Material Adverse Effect. To
the knowledge of the executive officers of Kimco, Kimco and its Subsidiaries
have obtained all licenses, permits and other authorizations and have taken all
actions required by applicable law or governmental regulations in connection
with their business as now conducted, where the failure to obtain any such item
or to take any such action would have a Kimco Material Adverse Effect. True and
correct copies of Kimco's and its Subsidiaries' charter, bylaws, organization
documents, and partnership and joint venture agreements have been previously
delivered or made available to Price REIT.
6.2. Authorization, Validity and Effect of Agreements. Each of Kimco and
Merger Sub has the requisite corporate power and authority to enter into the
transactions contemplated hereby and to execute and deliver this Agreement and
the agreements listed on Schedule 6.2 attached hereto (the "Ancillary
Agreements") to which it is a party. Subject only to the approval of the
issuance of the Merger Consideration pursuant to the Merger contemplated hereby
by the holders of a majority of the shares of Kimco Common Stock present and
voting thereon, the consummation by Kimco and Merger Sub of this Agreement, the
Ancillary Agreement to which they are parties and the transactions contemplated
hereby has been duly authorized by all requisite corporate action on the part of
Kimco and Merger Sub. This Agreement constitutes, and the Ancillary Agreements
to which they are parties (when executed and delivered pursuant hereto for value
received) will constitute, the valid and legally binding obligations of Kimco
and Merger Sub, enforceable against Kimco and Merger Sub in accordance with
their respective terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights and general principles of
equity.
6.3. Capitalization. The authorized capital stock of Kimco
consists of 100,000,000 shares of Kimco Common Stock and 5,000,000
21
shares of Preferred Stock, 345,000 shares of Class A Cumulative Redeemable
Preferred Stock (the "Class A Preferred Stock"), 230,000 shares of Class B
Cumulative Redeemable Preferred Stock, (the "Class B Preferred Stock") and
460,000 Class C Cumulative Redeemable Preferred Stock (the "Class C Preferred
Stock"), each par value $1.00 per share (collectively, the "Kimco Preferred
Stock"). As of the date hereof, there were 40,394,805 shares of Kimco Common
Stock issued and outstanding and 300,000 shares of Class A Preferred Stock,
200,000 shares of Class B Preferred Stock, 400,000 shares of Class C Preferred
Stock and no shares of Preferred Stock of Kimco issued and outstanding. Kimco
has no outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of Kimco on any
matter. All such issued and outstanding shares of Kimco Common Stock are duly
authorized, validly issued, fully paid, nonassessable and free of preemptive
rights. There are not at the date of this Agreement any existing options,
warrants, calls, subscriptions, convertible securities, or other rights,
agreements or commitments which obligate Kimco or any of its Subsidiaries to
issue, transfer or sell any shares of stock or other equity interest of Kimco or
any of its Subsidiaries, other than the issuance after the date hereof by Kimco
of Kimco Common Stock, consistent with prior practice, upon the exercise of
stock options issued to employees and directors. As of the date hereof, options
to purchase an aggregate number of 1,879,841 shares of Kimco Common Stock are
outstanding, of which options to purchase 1,069,485 are exercisable.
6.4. Subsidiaries.
------------
(a) Except as set forth on Schedule 6.4 of the Kimco Disclosure Letter,
as of the date hereof, Kimco owns directly or indirectly each of the outstanding
shares of capital stock or all of the partnership or other equity interests of
each of Kimco's Subsidiaries. Each of the outstanding shares of capital stock of
or other equity interests in each of Kimco's Subsidiaries is duly authorized,
validly issued, fully paid and nonassessable, and is owned, directly or
indirectly, by Kimco free and clear of all liens, pledges, security interests,
claims or other encumbrances other than liens imposed by local law which are not
material. The following information for each Subsidiary of Kimco is set forth on
the Kimco Disclosure Letter, if applicable: (i) its name and jurisdiction of
incorporation or organization; (ii) its authorized capital stock or share
capital; and (iii) the percentage ownership in each Subsidiary.
(b) The authorized stock of Merger Sub consists of one hundred (100)
shares of Common Stock, par value $.01 per share, which shares are issued and
outstanding and owned by Kimco. Kimco has owned and, as of the Closing Date,
will own 100% of the stock of Merger Sub at all times since Merger Sub's
formation. Merger
22
Sub has not engaged in any activities other than in connection with the
transactions contemplated by this Agreement.
6.5. Other Interests. Except for interests in the Kimco Subsidiaries and
as otherwise set forth in the Kimco Disclosure Letter, neither Kimco nor any of
its Subsidiaries owns directly or indirectly any interest or investment (whether
equity or debt) in any corporation, partnership, joint venture, business, trust
or entity (other than investments in short-term investment securities).
6.6. No Violation. Except as set forth in Schedule 6.6 of the Kimco
Disclosure Letter, neither the execution and delivery by Kimco and Merger Sub of
this Agreement nor the consummation by Kimco and Merger Sub of the transactions
contemplated hereby in accordance with the terms hereof, will (i) conflict with
or result in a breach of any provisions of the charter of Kimco, the Articles of
Incorporation of Merger Sub or their respective bylaws, (ii) result in a breach
or violation of, a default under, or the triggering of any payment or other
material obligations pursuant to, or accelerate vesting under, any of Kimco's
stock option plans, or any grant or award under any of the foregoing, (iii)
violate, or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance required by, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties of Kimco or its Subsidiaries under, or result in
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Kimco or any of its Subsidiaries
is a party, or by which Kimco or any of its Subsidiaries or any of their
properties is bound or affected, except for any of the foregoing matters which,
individually or in the aggregate, would not have a Kimco Material Adverse Effect
or (iv) require any consent, approval or authorization of, or declaration,
filing or registration with, any domestic governmental or regulatory authority,
other than the Regulatory Filings and filings with the NYSE, or such other
filings which, if not obtained or made, would not prevent or delay in any
material respect the consummation of any of the transactions contemplated by
this Agreement or otherwise prevent Kimco from performing its obligations under
this Agreement in any material respect.
6.7. SEC Documents. Kimco has delivered or made available to Price REIT
each registration statement, report, proxy statement or information statement
and all exhibits thereto prepared by it or relating to its properties since
January 1, 1995, which are set forth on the Kimco Disclosure Letter, each in the
form (including
23
exhibits and any amendments thereto) filed with the SEC (collectively, the
"Kimco Reports"). The Kimco Reports, which were filed with the SEC in a timely
manner, constitute all forms, reports and documents required to be filed by
Kimco under the Securities Laws. As of their respective dates, the Kimco Reports
(i) complied as to form in all material respects with the applicable
requirements of the Securities Laws and (ii) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading. Each of the
consolidated balance sheets of Kimco included in or incorporated by reference
into the Kimco Reports (including the related notes and schedules) fairly
presents the consolidated financial position of Kimco and its Subsidiaries as of
its date and each of the consolidated statements of income, retained earnings
and cash flows of Kimco included in or incorporated by reference into the Kimco
Reports (including any related notes and schedules) fairly presents the results
of operations, retained earnings or cash flows, as the case may be, of Kimco and
its Subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments which would not be
material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein and except, in the case of the unaudited
statements, as permitted by Form 10-Q of the SEC. Except as and to the extent
set forth on the consolidated balance sheet of Kimco and its Subsidiaries at
September 30, 1997, including all notes thereto, or as set forth in the Kimco
Reports, neither Kimco nor any of its Subsidiaries has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
that would be required to be reflected on, or reserved against in, a balance
sheet of Kimco or in the notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied, other than any such
liabilities or obligations that, individually or in the aggregate, would not
have a Kimco Material Adverse Effect.
6.8. Litigation. There are (i) no continuing orders, injunctions or
decrees of any court, arbitrator or governmental authority to which Kimco or any
of its Subsidiaries is a party or by which any of its properties or assets are
bound or, to the best knowledge of Kimco, to which any of its directors,
officers, employees or agents is a party or by which any of their properties or
assets are bound and (ii) no actions, suits or proceedings pending against Kimco
or any of its Subsidiaries or, to the knowledge of Kimco, against any of its
directors, officers, employees or agents or, to the knowledge of Kimco,
threatened in writing against Kimco or any of its Subsidiaries or against any of
its directors, officers, employees or agents, at law or in equity, or before or
by any federal or state commission, board, bureau, agency or instrumentality,
that in the case of clauses (i) or (ii)
24
above are reasonably likely, individually or in the aggregate, to have a Kimco
Material Adverse Effect.
6.9. Absence of Certain Changes. Except as disclosed in the Kimco
Reports filed with the SEC prior to the date hereof or in Schedule 6.9 of the
Kimco Disclosure Letter, since September 30, 1997, Kimco and its Subsidiaries
have conducted their business only in the ordinary course of such business
(which, for purposes of this section only, shall include all acquisitions of
real estate properties and financing arrangements made in connection therewith)
and there has not been (i) any Kimco Material Adverse Effect, (ii) as of the
date hereof, any declaration, setting aside or payment of any dividend or other
distribution with respect to the Kimco Common Stock or (iii) any material change
in Kimco's accounting principles, practices or methods.
6.10. Taxes. (a) Kimco and each of its Subsidiaries (i) has timely filed
all federal, state, local and foreign tax returns required to be filed by any of
them for tax years ended prior to the date of this Agreement or requests for
extensions have been timely filed and any such request has been granted and has
not expired and all such returns are complete in all material respects, (ii) has
paid or accrued all taxes shown to be due and payable on such returns or which
have become due and payable pursuant to any assessment, deficiency notice,
30-day letter or other notice received by it and (iii) has properly accrued all
such taxes for such periods subsequent to the periods covered by such returns.
The federal, state or local income or franchise tax returns of Kimco and each of
its Subsidiaries have not been examined by the appropriate taxing authority,
except for such examinations that, individually or in the aggregate, would not
have a Kimco Material Adverse Effect. Neither Kimco nor any of its Subsidiaries
has executed or filed with the IRS or any other taxing authority any agreement
now in effect extending the period for assessment or collection of any income or
other taxes. Neither Kimco nor any of its Subsidiaries is a party to any pending
action or proceeding by any governmental authority for assessment or collection
of taxes, and no claim for assessment or collection of taxes has been asserted
against it. True, correct and complete copies of all federal, state and local
income or franchise tax returns filed by Kimco and each of its Subsidiaries and
all communications relating thereto have been delivered to Price REIT or made
available to representatives of Price REIT. The most recent audited financial
statements contained in the Kimco Reports reflect an adequate reserve for all
material Taxes payable by Kimco and the Kimco Subsidiaries for all taxable
periods and portions thereof through the date of such financial statements.
Since the date of such financial statements, Kimco has incurred no liability for
taxes under Sections 857(b), 860(c) or 4981 of the Code, including without
limitation, any tax arising from a prohibited transaction described in Section
857(b)(6) of the Code, and neither Kimco nor
25
any Kimco Subsidiary has incurred any liability for Taxes other than in the
ordinary course of business.
(b) Kimco (i) has elected to be taxed as a real estate investment trust
(a "REIT") within the meaning of the Code commencing with its taxable year ended
December 31, 1992, (ii) has been subject to taxation as a REIT within the
meaning of Section 856 of the Code and has satisfied all requirements to qualify
as a REIT for all taxable years commencing with its taxable year ended December
31, 1992 through its taxable year ended December 31, 1997, (iii) has operated
since December 31, 1997 to the date of this representation, and intends to
continue to operate in such a manner so as to qualify as a REIT for its taxable
year ending December 31, 1998, and (iv) has not taken or omitted to take any
action which would reasonably be expected to result in a challenge to its status
as a REIT, and to the knowledge of the executive officers of Kimco, no such
challenge is pending or threatened. Kimco represents that each of its corporate
Subsidiaries is a Qualified REIT Subsidiary as defined in Section 856(i) of the
Code (as in effect prior to the enactment of the Taxpayer Relief Act of 1997),
and that each partnership, limited liability company, joint venture or other
legal entity in which Kimco (either directly or indirectly) owns any of the
capital stock or other equity interests thereof has been treated since its
formation and continues to be treated for federal income tax purposes as a
partnership and not as an association taxable as a corporation.
6.11. Books and Records.
-----------------
(a) The books of account and other financial records of Kimco and its
Subsidiaries are in all material respects true, complete and correct, have been
maintained in accordance with good business practices, and are accurately
reflected in all material respects in the financial statements included in the
Kimco Reports.
(b) The minute books and other records of Kimco and its Subsidiaries,
have been made available to Price REIT, contain in all material respects
accurate records of all meetings and accurately reflect in all material respects
all other trust and corporate action of the stockholders, members and directors
and any committees of the Board of Directors of Kimco and its Subsidiaries.
6.12. Properties. Kimco and its Subsidiaries own fee simple title to, or
hold ground leases in, each of the real properties identified in the Kimco
Disclosure Letter (the "Kimco Properties"), which are all the real estate
properties owned or leased by them. The Kimco Properties are not subject to any
Property Restrictions, except for (i) Encumbrances and Property Restrictions set
forth in the Kimco Disclosure Letter, (ii) Property Restrictions imposed or
promulgated by law or any governmental body or authority with respect to real
property, including zoning regulations, provided such Property Restrictions do
not adversely affect in any material
26
respect the current use of the applicable property, (iii) Encumbrances and
Property Restrictions disclosed on existing title reports or current surveys (in
either case copies of which title reports and surveys have been delivered or
made available to Price REIT) and (iv) mechanics', carriers', workmen's,
repairmen's liens and other Encumbrances, Property Restrictions and other
limitations of any kind, if any, which, individually or in the aggregate, do not
materially detract from the value of or materially interfere with the present
use of any of the Kimco Properties subject thereto or affected thereby, and do
not otherwise materially impair business operations conducted by Kimco and its
Subsidiaries and which have arisen or been incurred only in the ordinary course
of business. Valid policies of title insurance have been issued insuring Kimco's
or any of its Subsidiaries' fee simple title to the Kimco Properties in amounts
at least equal to the purchase price thereof, subject only to the matters set
forth therein or disclosed above and on the Kimco Disclosure Letter, and such
policies are, at the date hereof, in full force and effect and there are no
pending claims against such policy. Any material certificate, permit or license
from any governmental authority having jurisdiction over any of the Kimco
Properties and any agreement, easement or other right which is necessary to
permit the material lawful use and operation of the buildings and improvements
on any of the Kimco Properties or which is necessary to permit the lawful use
and operation of all driveways, roads and other means of egress and ingress,
which Kimco has rights to, to and from any of the Kimco Properties which are
currently occupied has not been obtained and is not in full force and effect,
and, to the best knowledge of Kimco, there exists no pending threat of
modification or cancellation of any of same. Kimco is not in receipt of any
written notice of any violation of any material federal, state or municipal law,
ordinance, order, regulation or requirement affecting any portion of any of the
Kimco Properties issued by any governmental authority, other than such
violations which would not reasonably be expected to have a Kimco Material
Adverse Effect. To the knowledge of Kimco (A) there are no material structural
defects relating to the Kimco Properties, (B) there are no Kimco Properties
whose building systems are not in working order in any material respect (except
for temporary and routine maintenance and operating systems failures which in
any event are the subject of adequate pending repair procedures), (C) there is
no physical damage to any Kimco Property in excess of $500,000 for which there
is no insurance in effect covering the cost of the restoration as of the date
hereof or (D) no current renovation or restoration to any Kimco Property is
under way or is being contemplated the cost of which exceeds $500,000, except as
set forth on Schedule 6.12 of the Kimco Disclosure Letter. Neither Kimco nor any
of its Subsidiaries have received any written notice to the effect that (x) any
condemnation or material rezoning proceedings are pending or threatened with
respect to any of the Kimco Properties or (y) any zoning, building or similar
law, code, ordinance, order or regulation is or will be violated in any material
respect by the
27
continued maintenance, operation or use of any buildings or other improvements
on any of the Kimco Properties as currently maintained, used or operated or by
the continued maintenance, operation or use of the parking areas as currently
maintained, used or operated.
6.13. Environmental Matters. To the actual knowledge of the executive
officers of Kimco, none of Kimco, any of its Subsidiaries or any other person
has caused or permitted (a) the unlawful presence of any Hazardous Materials on
any of the Kimco Properties or (b) any unlawful spills, releases, discharges or
disposal of Hazardous Materials to have occurred or be presently occurring on or
from the Kimco Properties as a result of any construction on or operation and
use of such properties, which presence or occurrence would, individually or in
the aggregate, have a Kimco Material Adverse Effect; and in connection with the
construction on or operation and use of the Kimco Properties, Kimco and its
Subsidiaries have not failed to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials, except where the
failure to so comply would not reasonably be expected to have a Kimco Material
Adverse Effect.
6.14. Employee Benefit Plans. All employee benefits plans and other
benefit programs, policies and arrangements covering employees of Kimco and its
Subsidiaries (the "Kimco Benefit Plans") are listed in the Kimco Disclosure
Letter. True and complete copies of the Kimco Benefit Plans have been made
available to Price REIT. To the extent applicable, the Kimco Benefit Plans
comply, in all material respects, with the requirements of ERISA and the Code,
and any Kimco Benefit Plan intended to be qualified under Section 401(a) of the
Code has been determined by the IRS to be so qualified. No Kimco Benefit Plan is
or has been covered by Title IV of ERISA or Section 412 of the Code. Neither any
Kimco Benefit Plan nor any fiduciary thereof nor Kimco has incurred any material
liability or penalty under Section 4975 of the Code or Section 502(i) of ERISA.
Each Kimco Benefit Plan has been maintained and administered in all material
respects in compliance with its terms and with ERISA and the Code to the extent
applicable thereto. To the knowledge of the executive officers of Kimco, there
are no pending or anticipated claims against or otherwise involving any of the
Kimco Benefit Plans and no suit, action or other litigation (excluding claims
for benefits incurred in the ordinary course of Kimco Benefit Plan activities)
has been brought against or with respect to any such Kimco Benefit Plan, except
for any of the foregoing which would not have a Kimco Material Adverse Effect.
All material contributions required to be made as of the date hereof to the
Kimco Benefit Plans have been timely made or provided for. Neither Kimco nor any
entity under "common control" with Kimco within the meaning of ERISA Section
4001 has contributed to,
28
or been required to contribute to, any "multiemployer plan" (as defined in
Sections 3(37) and 4001(a)(3) of ERISA). Kimco does not maintain or contribute
to any plan, program, policy or arrangement which provides or has any liability
to provide life insurance, medical or other employee welfare benefits or
supplemental pension benefits to any employee or former employee upon his
retirement or termination of employment, except as required under Section 4890B
of the Code, and Kimco has never represented, promised or contracted (whether in
oral or written form) to any employee or former employee that such benefits
would be provided. Except as disclosed in the Kimco Reports, the execution of,
and performance of the transactions contemplated by, this Agreement will not
(either alone or upon the occurrence of any additional subsequent events)
constitute an event under any benefit plan, program, policy, arrangement or
agreement or any trust or loan that will or may result in any payment (whether
of severance pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligations to fund benefits with
respect to any employee, director or consultant of Kimco or any of its
Subsidiaries.
6.15. Labor Matters. Neither Kimco nor any of its Subsidiaries is a
party to, or bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor union organization. There
is no unfair labor practice or labor arbitration proceeding pending or, to the
knowledge of Kimco, threatened against Kimco or any of its Subsidiaries relating
to their business, except for any such proceeding which would not have a Kimco
Material Adverse Effect. To the knowledge of the executive officers of Kimco,
there are no organizational efforts with respect to the formation of a
collective bargaining unit presently being made or threatened involving
employees of Kimco or any of its Subsidiaries.
6.16. No Brokers. Kimco has not entered into any contract, arrangement
or understanding with any person or firm which may result in the obligation of
Price REIT or Kimco to pay any finder's fees, brokerage or agent's commissions
or other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby, except
that Kimco has retained Jefferies & Company, Inc. ("Jefferies") as its financial
advisor, pursuant to an engagement letter dated December 16, 1997, a true and
correct copy of which has been delivered to Price REIT prior to the date hereof.
Other than the foregoing arrangements, Kimco is not aware of any claim for
payment of any finder's fees, brokerage or agent's commissions or other like
payments in connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby.
6.17. Opinion of Financial Advisor. Kimco has received the
opinion of Jefferies to the effect that, as of the date hereof, the
29
Merger Consideration to be paid by Kimco pursuant to the Merger is fair to the
holders of Kimco Common Stock from a financial point of view.
6.18. Price REIT Stock Ownership. Neither Kimco nor any of its
Subsidiaries owns any shares of capital stock of Price REIT or other securities
convertible into capital stock of Price REIT.
6.19. Related Party Transactions. Set forth in the Kimco Disclosure
Letter is a list of all arrangements, agreements and contracts entered into by
Kimco or any of its Subsidiaries with any executive officer, director or family
members of affiliates of such persons required to be disclosed in the Kimco
Reports (including reports and filings analogous to the Kimco Reports prior to
January 1, 1995) pursuant to the rules and regulations of the SEC. The copies of
such documents, all of which have been previously delivered or made available to
Price REIT, are listed on the Kimco Disclosure Letter and are true and correct.
6.20. Contracts and Commitments. The Kimco Disclosure Letter or the
Kimco Reports set forth, as of the date hereof, (i) all notes, debentures, bonds
and other evidence of indebtedness which are secured or collateralized by
mortgages, deeds of trust or other security interests in the Kimco Properties or
personal property of Kimco and its Subsidiaries and (ii) each Commitment entered
into by Kimco or any of its Subsidiaries which may result in total payments or
liability in excess of $500,000, excluding tenant reimbursements and leases
entered into in the ordinary course. Copies of the foregoing have been
previously delivered or made available to Price REIT, are listed on the Kimco
Disclosure Letter or included in the Kimco Reports and are true and correct.
None of Kimco or any of its Subsidiaries has received any notice of a default
that has not been cured under any of the documents described in clause (i) above
or is in default respecting any payment obligations thereunder beyond any
applicable grace periods. All joint venture agreements to which Kimco or any of
its Subsidiaries is a party are set forth on the Kimco Disclosure Letter and
Kimco or its Subsidiaries are not in default with respect to any obligations,
which individually or in the aggregate are material, thereunder.
6.21. Leases.
(a) The Kimco Disclosure Letter sets forth a list of all Kimco
Properties that are subject to or encumbered by any non-residential lease
accounting for 1% or more of Kimco's rental revenues for the most recent period
reflected in the financial statements included in the Kimco Reports (a "Material
Kimco Lease") and, with respect to each such Material Kimco Lease, sets forth
the following information:
(i) the name of the lessee;
30
(ii) the expiration date of the lease;
(iii) the amount (or method of determining the amount) of monthly
rentals due under the lease; and
(iv) with respect to any Material Kimco Lease with a remaining
term of less than 24 months, whether the lessee has notified Kimco in
writing of any intention not to renew, or seek to renew, the lease.
(b) Except as set forth in the Kimco Disclosure Letter, (i) all rental
payments due under each Material Kimco Lease have been paid during the period
January 1, 1997 through November 30, 1997 and (ii) to Kimco's knowledge, no
lessee is in material default, and no condition or event exists which with the
giving of notice or the passage of time, or both, would constitute a material
default by any lessee, under any Material Kimco Lease.
6.22. Investment Company Act of 1940. Neither Kimco nor any of its
Subsidiaries is, or at the Effective Time will be, required to be registered
under the Investment Company Act of 1940, as amended.
ARTICLE 7
COVENANTS
7.1. No Solicitation by Price REIT. (a) Price REIT shall not, nor shall
it permit any of its Subsidiaries to, nor shall it authorize or permit any of
its directors, officers or employees or any investment banker, financial
advisor, attorney, accountant or other representative retained by it or any of
its Subsidiaries to, directly or indirectly through another person, (i) solicit,
initiate or encourage (including by way of furnishing information), or take any
other action designed to facilitate, any inquiries or the making of any proposal
which constitutes any Price REIT Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding any Price REIT Takeover
Proposal; provided, however, that if the Board of Directors of Price REIT
determines in good faith, after consultation with outside counsel, that it is
necessary to do so in order to comply with its fiduciary duties to Price REIT's
stockholders under applicable law, Price REIT may, in response to a Price REIT
Takeover Proposal which was not solicited by it or which did not otherwise
result from a breach of this Section 7.1(a), and subject to providing prior
written notice of its decision to take such action to Kimco and compliance with
Section 7.1(c), (x) furnish information with respect to Price REIT and its
Subsidiaries to any person making a Price REIT Takeover Proposal pursuant to a
customary confidentiality agreement (as determined by Price REIT after
consultation with its outside counsel) and (y) participate in discussions or
negotiations regarding such Price REIT Takeover
31
Proposal. For purposes of this Agreement, "Price REIT Takeover Proposal" means
any proposal made by a third party to acquire, directly or indirectly, including
pursuant to a tender offer, exchange offer, merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction,
for consideration consisting of cash and/or securities, more than 50% of the
combined voting power of the shares of Price REIT Common Stock then outstanding
or all or substantially all the assets of Price REIT.
(b) Except as expressly permitted by this Section 7.1, neither the Board
of Directors of Price REIT nor any committee thereof shall (i) withdraw or
modify, or propose publicly to withdraw or modify, in a manner adverse to Kimco,
the approval or recommendation by such Board of Directors or such committee of
the Merger or this Agreement, (ii) approve or recommend, or propose publicly to
approve or recommend, any Price REIT Takeover Proposal or (iii) cause Price REIT
to enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement (each, a "Price REIT Acquisition
Agreement") related to any Price REIT Takeover Proposal. Notwithstanding the
foregoing, in the event that a majority of the Board of Directors of Price REIT
determines in good faith (A) (based on the advice of a financial advisor of
nationally recognized reputation) that a pending Price REIT Takeover Proposal is
more favorable to Price REIT's stockholders than the Merger, (B) that such Price
REIT Takeover Proposal is reasonably capable of being consummated and (C) that
there is a substantial probability that the adoption of this Agreement by
holders of Price REIT Common Stock will not be obtained due to the pending Price
REIT Takeover Proposal, the Board of Directors of Price REIT may (subject to
this and the following sentences and in compliance with Section 9.3(a)) approve
and recommend such Price REIT Takeover Proposal and, in connection therewith,
withdraw or modify its approval or recommendation of this Agreement and the
Merger and terminate this Agreement (and concurrently with or after such
termination, if it so chooses, cause Price REIT to enter into any Price REIT
Acquisition Agreement with respect to such Price REIT Takeover Proposal), but
only at a time that is after the fifth business day following Kimco's receipt of
written notice advising Kimco that the Board of Directors of Price REIT is
prepared to accept a Price REIT Takeover Proposal, specifying the material terms
and conditions of such Price REIT Takeover Proposal and identifying the person
making such Price REIT Takeover Proposal.
(c) In addition to the obligations of Price REIT set forth in paragraphs
(a) and (b) of this Section 7.1, Price REIT shall immediately advise Kimco
orally and in writing of any request for information or of any Price REIT
Takeover Proposal, the material terms and conditions of such request or Price
REIT Takeover Proposal and the identity of the person making such request or
Price REIT Takeover Proposal. Price REIT will keep Kimco
32
reasonably informed of the status and details (including amendments or proposed
amendments) of any such request or Price REIT Takeover Proposal.
(d) Nothing contained in this Section 7.1 shall prohibit Price REIT from
taking and disclosing to its stockholders a position contemplated by Rule 14d-9
and Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to Price REIT's stockholders if, in the good faith judgment of the
Board of Directors of Price REIT, after consultation with outside counsel,
failure so to disclose would be inconsistent with its obligations under
applicable law; provided, however, that neither Price REIT nor its Board of
Directors nor any committee thereof shall withdraw or modify, or propose
publicly to withdraw or modify, its position with respect to this Agreement or
the Merger or approve or recommend, or propose publicly to approve or recommend,
a Price REIT Takeover Proposal, except in accordance with this Section 7.1.
7.2. No Solicitation by Kimco. (a) Kimco shall not, nor shall it permit
any of its Subsidiaries to, nor shall it authorize or permit any of its
directors, officers or employees or any investment banker, financial advisor,
attorney, accountant or other representative retained by it or any of its
Subsidiaries to, directly or indirectly through another person, (i) solicit,
initiate or encourage (including by way of furnishing information), or take any
other action designed to facilitate, any inquiries or the making of any proposal
which constitutes any Kimco Takeover Proposal (as defined below) or (ii)
participate in any discussions or negotiations regarding any Kimco Takeover
Proposal; provided, however, that if the Board of Directors of Kimco determines
in good faith, after consultation with outside counsel, that it is necessary to
do so in order to comply with its fiduciary duties to Kimco's stockholders under
applicable law, Kimco may, in response to a Kimco Takeover Proposal which was
not solicited by it or which did not otherwise result from a breach of this
Section 7.2(a), and subject to providing prior written notice of its decision to
take such action to Price REIT and compliance with Section 7.2(c), (x) furnish
information with respect to Kimco and its Subsidiaries to any person making a
Kimco Takeover Proposal pursuant to a customary confidentiality agreement (as
determined by Kimco after consultation with its outside counsel) and (y)
participate in discussions or negotiations regarding such Kimco Takeover
Proposal. For purposes of this Agreement, "Kimco Takeover Proposal" means any
proposal made by a third party to acquire, directly or indirectly, including
pursuant to a tender offer, exchange offer, merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction,
for consideration consisting of cash and/or securities, more than 50% of the
combined voting power of the shares of Kimco Common Stock then outstanding or
all or substantially all the assets of Kimco.
33
(b) Except as expressly permitted by this Section 7.2, neither the Board
of Directors of Kimco nor any committee thereof shall (i) withdraw or modify, or
propose publicly to withdraw or modify, in a manner adverse to Price REIT, the
approval or recommendation by such Board of Directors or such committee of the
Merger, this Agreement or the issuance of Kimco Common Stock and Kimco Preferred
Stock in connection with the Merger, (ii) approve or recommend, or propose
publicly to approve or recommend, any Kimco Takeover Proposal or (iii) cause
Kimco to enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement (each, a "Kimco Acquisition Agreement")
related to any Kimco Takeover Proposal. Notwithstanding the foregoing, in the
event that a majority of the Board of Directors of Kimco determines in good
faith (A) (based on the advice of a financial advisor of nationally recognized
reputation) that a pending Kimco Takeover Proposal is more favorable to Kimco's
stockholders than the Merger, (B) that such Price REIT Takeover Proposal is
reasonably capable of being consummated and (C) that there is a substantial
probability that the adoption of this Agreement by holders of Kimco Common Stock
will not be obtained due to the existence of the pending Kimco Takeover
Proposal, the Board of Directors of Kimco may (subject to this and the following
sentences) approve and recommend such Kimco Takeover Proposal and, in connection
therewith, withdraw or modify its approval or recommendation of this Agreement
and the Merger and terminate this Agreement (and concurrently with or after such
termination, if it so chooses, cause Kimco to enter into any Kimco Acquisition
Agreement with respect to such Kimco Takeover Proposal), but only at a time that
is after the fifth business day following Price REIT's receipt of written notice
advising Price REIT that the Board of Directors of Kimco is prepared to accept a
Kimco Takeover Proposal, specifying the material terms and conditions of such
Kimco Takeover Proposal and identifying the person making such Kimco Takeover
Proposal.
(c) In addition to the obligations of Kimco set forth in paragraphs (a)
and (b) of this Section 7.2, Kimco shall immediately advise Price REIT orally
and in writing of any request for information or of any Kimco Takeover Proposal,
the material terms and conditions of such request or Kimco Takeover Proposal and
the identity of the person making such request or Kimco Takeover Proposal. Kimco
will keep Price REIT reasonably informed of the status and details (including
amendments or proposed amendments) of any such request or Kimco Takeover
Proposal.
(d) Nothing contained in this Section 7.2 shall prohibit Kimco from
taking and disclosing to its stockholders a position contemplated by Rule 14d-9
and Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to Kimco's stockholders if, in the good faith judgment of the Board
of Directors of Kimco, after consultation with outside counsel, failure so to
disclose would be inconsistent with its obligations under applicable law;
34
provided, however, that neither Kimco nor its Board of Directors nor any
committee thereof shall withdraw or modify, or propose publicly to withdraw or
modify, its position with respect to this Agreement, the Merger, the issuance of
Kimco Common Stock and Kimco Preferred Stock in connection with the Merger, or
approve or recommend, or propose publicly to approve or recommend, a Kimco
Takeover Proposal, except in accordance with this Section 7.2.
7.3. Conduct of Businesses.
(i) Prior to the Effective Time, except as set
forth in the Price REIT Disclosure Letter or the Kimco Disclosure Letter or as
contemplated by this Agreement, unless the other party has consented in writing
thereto, Kimco and Price REIT:
(a) shall use their reasonable efforts, and shall cause each of
their respective Subsidiaries to use their reasonable efforts, to
preserve intact their business organizations and goodwill and keep
available the services of their respective officers and employees;
(b) shall confer on a regular basis with one or more
representatives of the other to report material operational matters and,
subject to Sections 7.1 and 7.2, respectively, any proposals to engage
in material transactions;
(c) shall promptly notify the other of any material emergency or
other material change in the condition (financial or otherwise),
business, properties, assets, liabilities, prospects or the normal
course of their businesses or in the operation of their properties, any
material governmental complaints, investigations or hearings (or
communications indicating that the same may be contemplated), or the
breach in any material respect of any representation or warranty
contained herein;
(d) shall set the record date for the quarterly dividend payable
with respect to the Kimco Common Stock and Kimco Preferred Stock and
Price REIT Common Stock, respectively, for the first calendar quarter of
1998 to a date no later than April 1; and
(e) shall promptly deliver to the other true and correct copies
of any report, statement or schedule filed with the SEC subsequent to
the date of this Agreement.
(ii) Prior to the Effective Time, except (1) as
disclosed in the Price REIT Two-Year Projection and the Price REIT Development
Pipeline, copies of which have been previously provided to Kimco, (2) as set
forth in the Price REIT Disclosure Letter, unless Kimco has consented in writing
thereto, Price REIT:
35
(a) shall, and shall cause each of its Subsidiaries to, conduct
its operations according to their usual, regular and ordinary course in
substantially the same manner as heretofore conducted, subject to clause
(b) below;
(b) shall not, and shall cause its Subsidiaries not to, acquire,
enter into an option to acquire or exercise an option or contract to
acquire additional real property, encumber assets or commence
construction of, or enter into any agreement or commitment to develop or
construct, retail shopping center properties or other real estate
projects, except in the case of any of the foregoing in an amount not to
exceed $150,000,000 in the aggregate;
(c) shall not amend its charter or bylaws;
(d) shall not (1) except pursuant to the exercise of options,
warrants, conversion rights and other contractual rights existing on the
date hereof and disclosed pursuant to this Agreement, issue any shares
of its capital stock, effect any stock split, reverse stock split, stock
dividend, recapitalization or other similar transaction other than a
private placement or a sale pursuant to Rule 415 of the Securities Act
under an effective Price REIT registration statement of capital stock of
Price REIT for an amount not to exceed $75,000,000, the proceeds of
which shall be applied to pay down outstanding borrowings under Price
REIT's existing credit facilities or to the matters specified in Section
7.3(ii)(b), in each case in a manner consistent with Price REIT's past
practice, (2) grant, confer or award any option, warrant, conversion
right or other right not existing on the date hereof to acquire any
shares of its capital stock, (3) increase any compensation or enter into
or amend any employment agreement with any of its present or future
officers or directors or (4) adopt any new employee benefit plan
(including any stock option, stock benefit or stock purchase plan) or
amend any existing employee benefit plan in any material respect, except
for changes which are required by applicable law or are less favorable
to participants in such plans;
(e) shall not declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock, except (1)(x) a dividend in an amount not to exceed $0.75 per
share of Price REIT Common Stock for the last quarter of the year ending
December 31, 1997 and (y) a dividend in an amount equal to the greater
of (I) $0.75 per quarter pro-rated for the period from January 1, 1998
up to and including the Closing Date and (II) the sum of (A) Price
REIT's estimated undistributed real estate investment trust taxable
income (calculated without regard to the dividends paid deductions as
defined in Section 561 of the
36
Code and by excluding net capital gain) within the meaning of Section
857(b)(2) of the Code for Price REIT's 1998 taxable year ending on the
Closing Date and (B) Price REIT's estimated undistributed net capital
gain within the meaning of Section 857(b)(3) of the Code for Price
REIT's 1998 taxable year ending on the Closing Date, and except (2) in
connection with the use of shares of capital stock to pay the exercise
price or tax withholding in connection with stock-based employee benefit
plans of Price REIT, directly or indirectly redeem, purchase or
otherwise acquire any shares of its capital stock or capital stock of
any of its Subsidiaries, or make any commitment for any such action;
(f) except in the ordinary course of business consistent with
past practice, shall not, and shall not permit any of its Subsidiaries
to, sell, lease, mortgage or otherwise encumber or subject to any
Encumbrances or otherwise dispose of (i) any Price REIT Properties or
any of its capital stock of or other interests in its Subsidiaries or
(ii) any of its other assets which are material, individually or in the
aggregate;
(g) shall not, and shall not permit any of its Subsidiaries to,
(i) incur, assume or prepay any indebtedness for borrowed money in an
amount in excess of $100,000,000, which amounts shall be applied to pay
down outstanding borrowings under Price REIT's existing credit
facilities or to the matters specified in Section 7.3(ii)(b), in each
case in a manner consistent with Price REIT's past practice, (ii)
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
third party or (iii) make any loans, advances or capital contributions
to, or (except as permitted by Section 7.3(ii)(l)) investments in, any
other person, other than loans, advances and capital contributions to
Subsidiaries;
(h) shall not, and shall not permit any of its Subsidiaries to,
pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise),
other than the payment, discharge or satisfaction, in the ordinary
course of business consistent with past practice or in accordance with
their terms, of liabilities reflected or reserved against in, or
contemplated by, the most recent consolidated financial statements (or
the notes thereto) of Price REIT included in the Price REIT Reports or
incurred in the ordinary course of business consistent with past
practice;
(i) shall not, and shall not permit any of its Subsidiaries to,
enter into any Commitment which may result in total payments or
liability by or to it in excess of $200,000, except (1) tenant
reimbursements and leases entered into in
37
the ordinary course consistent with past practice and (2) capital
expenditures disclosed in the Price REIT Project Pipeline for 1998 and
1999, a copy of which has been previously provided to Kimco;
(j) shall not, and shall not permit any of its Subsidiaries to,
enter into any Commitment with any officer, director, consultant or
affiliate of Price REIT or any of its Subsidiaries, other than a payment
to each of the three individuals entering into the Ancillary Agreements,
of an amount equal to the respective 1997 bonus awards paid to such
individuals by Price REIT pro-rated for the period from January 1, 1998
up to and including the Effective Time;
(k) shall not, and shall not permit any of its Subsidiaries to,
take any other action that would cause the representations and
warranties set forth in Section 5.9 (with each reference therein to
"ordinary course of business" being deemed for purposes of this Section
7.3(ii)(k) to be immediately followed by "consistent with past
practice") to no longer be true and correct;
(l) shall not acquire, or announce any proposed acquisition of,
50% or more of the Voting Securities, or all or substantially all of the
assets, of another entity which has net assets in excess of $25,000,000.
As used in this Section 7.3(ii)(l), "Voting Securities" shall mean any
capital stock or partnership or membership interests having the right
generally to vote in the election of directors, in the case of a
corporation, or to otherwise generally select the governing body, in the
case of any other entity; and
(m) shall not, and shall not permit any of its Subsidiaries to,
authorize, or commit or agree to take, any of the foregoing actions.
(iii) Prior to the Effective Time, unless Price
REIT has consented in writing thereto, Kimco:
(a) shall not declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock (including any dividend distribution payable in, or otherwise make
a distribution of, shares of capital stock of any existing or
subsequently formed subsidiary of Kimco), except (1)(v) (subject to
Section 7.3(i)(d)) a dividend in an amount not to exceed $0.48 per share
of Kimco Common Stock for the last calendar quarter of 1997, (w) a
dividend in the amount of $0.484375 per depositary share representing
the Class A Preferred Stock, (x) a dividend in the amount of $0.53125
per depositary share representing the Class B Preferred Stock, (y) a
dividend in the amount of $0.52345 per depositary share representing the
Class C
38
Preferred Stock and (z) a dividend in an amount equal to the greater of
(I) $0.48 per quarter pro-rated for the period from January 1, 1998 up
to and including the Closing Date and (II) the sum of (A) Kimco's
estimated undistributed real estate investment trust taxable income
(calculated without regard to dividends paid deductions as defined in
Section 561 of the Code and by excluding net capital gain) within the
meaning of Section 857(b)(2) of the Code for Kimco's 1998 taxable year
ending on the Closing Date and (B) Kimco's estimated undistributed net
capital gain within the meaning of Section 857(b)(3) of the Code for
Kimco's 1998 taxable year ending on the Closing Date and except (2) in
connection with the use of shares of its capital stock to pay the
exercise price or tax withholding in connection with stock-based
employee benefit plans of Kimco, directly or indirectly redeem, purchase
or otherwise acquire any shares of its capital stock or capital stock of
any of its Subsidiaries, or make any commitment for any such action; and
(b) shall not amend its charter or bylaws.
(iv) If Kimco enters into negotiations with another
Person who has a class of securities registered under the Exchange Act regarding
the acquisition of such Person (whether effected through a merger,
consolidation, share exchange, tender offer or other form), then at least three
business days prior to executing any definitive agreement with such Person,
Kimco shall notify Price REIT of such transaction and consult with Price REIT
with respect thereto, it being understood, however, that Price REIT shall have
no approval rights with respect thereto. As used in this Section 7.3(iv),
"Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or other
entity.
(v) Except as required by law, Kimco and Price REIT
shall not, and shall not permit any of their respective Subsidiaries to,
voluntarily take any action that would, or that could reasonably be expected to,
result in (a) any of the representations and warranties of such party set forth
in this Agreement that are qualified as to materiality becoming untrue at the
Effective Time, (b) any of such representations and warranties that are not
qualified as to materiality becoming untrue in any material respect at the
Effective Time or (c) except as contemplated by Sections 7.1 and 7.2, any of the
conditions to the Merger set forth in Article 8 not being satisfied.
7.4. Meetings of Stockholders. Each of Kimco and Price REIT will take
all action necessary in accordance with applicable law and its charter and
bylaws to convene a meeting of its stockholders as promptly as practicable to
consider and vote upon (a) in the case of Kimco, the approval of the issuance of
the Kimco Common Stock constituting a part of the Merger Consideration pursuant
to
39
the Merger contemplated hereby and (b) in the case of Price REIT, the approval
of this Agreement and the transactions contemplated hereby. The Board of
Directors of Kimco and the Board of Directors of Price REIT shall each recommend
such approval and Kimco and Price REIT shall each take all lawful action to
solicit such approval, including, without limitation, timely mailing the Proxy
Statement/Prospectus (as defined in Section 7.8); provided, however, that such
recommendation or solicitation is subject to any action taken by, or upon
authority of, the Board of Directors of Kimco or the Board of Directors of Price
REIT, as the case may be, in the exercise of its good faith judgment as to its
fiduciary duties to its stockholders imposed by law. Kimco and Price REIT shall
coordinate and cooperate with respect to the timing of such meetings and shall
use their best efforts to hold such meetings on the same day. If on the date of
the stockholder meetings of Kimco and Price REIT established pursuant to this
paragraph, either Kimco or Price REIT has respectively received less than a
majority of the shares of the Kimco Common Stock present and voting at the
meeting of the holders of Kimco Common Stock in favor of the issuance of the
Kimco Common Stock constituting part of the Merger Consideration or a majority
of the outstanding shares of Price REIT Common Stock at the meeting of the
holders of Price REIT Common Stock in favor of the Merger and neither a Price
REIT Takeover Proposal nor a Kimco Takeover Proposal has been publicly disclosed
and not withdrawn prior to the date of such meeting, then both parties shall
recommend the adjournment of their respective stockholder meetings until the
first to occur of (i) the date (10) days after the originally scheduled date of
the stockholder meetings or (ii) the date on which duly executed proxies for the
requisite number of votes approving the Merger or the issuance of the Kimco
Common Stock constituting a part of the Merger Consideration, as applicable,
shall have been obtained. It shall be a condition to the mailing of the Proxy
Statement/Prospectus that (i) Kimco shall have received a "comfort" letter from
Ernst & Young LLP, independent public accountants for Price REIT, dated as of a
date within two business days before the date on which the Form S-4 (as defined
in Section 7.8) shall become effective, with respect to the financial statements
of Price REIT included in the Proxy Statement/Prospectus, in form and substance
reasonably satisfactory to Kimco, and customary in scope and substance for
"comfort" letters delivered by independent public accountants in connection with
registration statements and proxy statements similar to the Form S-4 and the
Proxy Statement/Prospectus, and (ii) Price REIT shall have received a "comfort"
letter from Coopers & Lybrand, L.L.P., independent public accountants for Kimco,
dated as of a date within two business days before the date on which the Form
S-4 shall become effective, with respect to the financial statements of Kimco
included in the Proxy Statement/Prospectus, in form and substance reasonably
satisfactory to Price REIT, and customary in scope and substance for "comfort"
letters delivered by independent public accountants in connection with
registration
40
statements and proxy statements similar to the Form S-4 and the Proxy Statement/
Prospectus.
7.5. Filings; Other Action. Subject to the terms and conditions herein
provided, Price REIT and Kimco shall: (a) to the extent required, promptly make
their respective filings with respect to the Merger; (b) use all reasonable
efforts to cooperate with one another in (i) determining which filings are
required to be made prior to the Effective Time with, and which consents,
approvals, permits or authorizations are required to be obtained prior to the
Effective Time from, governmental or regulatory authorities of the United
States, the several states and foreign jurisdictions in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and (ii) timely making all such filings and
timely seeking all such consents, approvals, permits or authorizations; (c) use
all reasonable efforts to obtain in writing any consents required from third
parties in form reasonably satisfactory to Price REIT and Kimco necessary to
effectuate the Merger; and (d) use all reasonable efforts to take, or cause to
be taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the Effective
Time, any further action is necessary or desirable to carry out the purpose of
this Agreement, the proper officers and directors of Kimco and Price REIT shall
take all such necessary action.
7.6. Inspection of Records. From the date hereof to the Effective Time,
each of Price REIT and Kimco shall allow all designated officers, attorneys,
accountants and other representatives of the other access at all reasonable
times to the records and files, correspondence, audits and properties, as well
as to all information relating to commitments, contracts, titles and financial
position, or otherwise pertaining to the business and affairs, of Price REIT and
Kimco and their respective Subsidiaries.
7.7. Publicity. The initial press release relating to this Agreement
shall be a joint press release and thereafter Price REIT and Kimco shall,
subject to their respective legal obligations (including requirements of stock
exchanges and other similar regulatory bodies), consult with each other, and use
reasonable efforts to agree upon the text of any press release, before issuing
any such press release or otherwise making public statements with respect to the
transactions contemplated hereby and in making any filings with any federal or
state governmental or regulatory agency or with any national securities exchange
with respect thereto.
7.8. Registration Statement. Kimco and Price REIT shall cooperate and
promptly prepare and Kimco shall file with the SEC as soon as practicable a
Registration Statement on Form S-4 (the "Form S-4") under the Securities Act,
with respect to the Merger
41
Consideration issuable in the Merger and the Option Consideration deliverable
pursuant to Section 4.1(e), a portion of which Registration Statement shall also
serve as the joint proxy statement with respect to the meetings of the
stockholders of Price REIT and of Kimco in connection with the Merger (the
"Proxy Statement/Prospectus"). The respective parties will cause the Proxy
Statement/Prospectus and the Form S-4 to comply as to form in all material
respects with the applicable provisions of the Securities Act, the Exchange Act
and the rules and regulations thereunder. Kimco shall use all reasonable
efforts, and Price REIT will cooperate with Kimco, to have the Form S-4 declared
effective by the SEC as promptly as practicable. Kimco shall use its reasonable
efforts to obtain, prior to the effective date of the Form S-4, all necessary
state securities law or "Blue Sky" permits or approvals required to carry out
the transactions contemplated by this Agreement and will pay all expenses
incident thereto. Kimco agrees that the Proxy Statement/Prospectus and each
amendment or supplement thereto at the time of mailing thereof and at the time
of the respective meetings of stockholders of Kimco and Price REIT, or, in the
case of the Form S-4 and each amendment or supplement thereto, at the time it is
filed or becomes effective, will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing shall not apply
to the extent that any such untrue statement of a material fact or omission to
state a material fact was made by Kimco in reliance upon and in conformity with
information concerning Price REIT furnished to Kimco by Price REIT specifically
for use in the Proxy Statement/Prospectus. Price REIT agrees that the
information provided by it for inclusion in the Proxy Statement/Prospectus and
each amendment or supplement thereto, at the time of mailing thereof and at the
time of the respective meetings of stockholders of Kimco and Price REIT, or, in
the case of information provided by Price REIT for inclusion in the Form S-4 or
any amendment or supplement thereto, at the time it is filed or becomes
effective, will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Kimco will advise Price REIT, promptly after it receives notice
thereof, of the time when the Form S-4 has become effective or any supplement or
amendment has been filed, the issuance of any stop order, the suspension of the
qualification of the Kimco Class D Preferred Stock issuable in connection with
the Merger for offering or sale in any jurisdiction, or any request by the SEC
for amendment of the Proxy Statement/Prospectus or the Form S-4 or comments
thereon and responses thereto or requests by the SEC for additional information.
7.9. Listing Application. Kimco shall promptly prepare and
submit to the NYSE a listing application covering the Kimco Common
42
Stock and the Kimco Depositary Shares issuable in the Merger, and shall use its
reasonable efforts to obtain, prior to the Effective Time, approval for the
listing of such Kimco Common Stock and the Kimco Depositary Shares, subject to
official notice of issuance.
7.10. Assumption of Debt and Leases. Without limiting the generality of
Section 7.5, with respect to debt issued by Price REIT under that certain
Indenture by and between Price REIT and First Trust of California, National
Association (the "Trustee"), dated as of October 27, 1995 (the "Indenture"), to
the extent the provisions of the Indenture so require, Kimco shall execute and
deliver to the Trustee (a) a Supplemental Indenture, in form and substance as
required by the Indenture (the "Supplemental Indenture"), expressly assuming the
obligations of Price REIT with respect to the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all debt securities
issued by Price REIT under the Indenture and the due and punctual performance of
all the terms, covenants and conditions of the Indenture to be kept or performed
by Price REIT and (b) such other customary documents as the Trustee may request
in accordance with the Indenture with respect to the Supplemental Indenture.
7.11. Affiliates of Price REIT.
------------------------
(a) At least 30 days prior to the Closing Date, Price REIT shall deliver
to Kimco a list of names and addresses of those persons who were, in Price
REIT's reasonable judgment, at the record date for its stockholders' meeting to
approve the Merger, "affiliates" (each such person, an "Affiliate") of Price
REIT within the meaning of Rule 145 of the rules and regulations promulgated
under the Securities Act ("Rule 145"). Price REIT shall provide Kimco such
information and documents as Kimco shall reasonably request for purposes of
reviewing such list. Price REIT shall use all reasonable efforts to deliver or
cause to be delivered to Kimco, prior to the Closing Date, from each of the
Affiliates of Price REIT identified in the foregoing list, an Affiliate Letter
in the form attached hereto as Exhibit B. Kimco shall be entitled to place
legends as specified in such Affiliate Letters on the certificates evidencing
any shares of the Merger Consideration to be received by such Affiliates
pursuant to the terms of this Agreement, and to issue appropriate stop transfer
instructions to the transfer agent for the Merger Consideration, consistent with
the terms of such Affiliate Letters.
(b) Kimco shall file the reports required to be filed by it under the
Exchange Act and the rules and regulations adopted by the SEC thereunder, and it
will take such further action as any Affiliate of Price REIT may reasonably
request, all to the extent required from time to time to enable such Affiliate
to sell the Merger Consideration received by such Affiliate in the Merger
without registration under the Securities Act pursuant to (i) Rule 145(d)(1)
under the Securities Act, as such Rule may be amended
43
from time to time, or (ii) any successor rule or regulation hereafter adopted by
the SEC.
7.12. Expenses. Subject to Section 9.5, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses, except that (a) the filing fee in
connection with the filing of the Form S-4 or Proxy Statement/Prospectus with
the SEC and (b) the expenses incurred in connection with printing and mailing
the Form S-4 and the Proxy Statement/Prospectus, shall be shared equally by
Price REIT and Kimco.
7.13. Indemnification. (a) From and after the Effective Time, Kimco
shall cause the Surviving Corporation to keep in effect provisions in its
Articles of Incorporation and Bylaws providing for exculpation of director
liability and indemnification of directors, officers, employees and agents at
least to the extent that such persons are entitled thereto under the charter and
bylaws of Price REIT on the date hereof, subject to Maryland law, which
provisions shall not be amended, repealed or otherwise modified for a period of
six years after the Effective Time in any manner that would adversely affect the
rights thereunder of individuals who at any time prior to the Effective Time
were directors, officers, employees or agents of Price REIT (the "Indemnified
Parties") in respect of actions or omissions occurring at or prior to the
Effective Time (including, without limitation, the transactions contemplated by
this Agreement), unless such modification is required by law; provided, that in
the event any claim or claims are asserted or made within such six year period,
all rights to indemnification in respect of any such claim or claims shall
continue until disposition of any and all such claims; provided, further, that
from and after the Effective Time, Kimco shall guaranty the obligations of the
Surviving Corporation under the indemnification provisions of the charter and
bylaws of Price REIT existing on the date hereof to the directors, officers,
employees or agents of Price REIT who at any time prior to the Effective Time
were entitled to indemnification thereunder in respect of actions or omissions
occurring at or prior to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement).
(b) For a period of two years after the Effective Time, the Surviving
Corporation shall cause to be maintained in effect the current policies of
directors' and officers' liability insurance maintained by Price REIT (provided
that the Surviving Corporation may substitute therefor policies of at least the
same coverage and amounts containing terms and conditions which are no less
advantageous) with respect to claims arising from facts or events which occurred
before the Effective Time; provided, however, that in no event shall the
Surviving Corporation be required to expend pursuant to this Section 7.13(b)
more than an amount equal to 200%
44
of current annual premiums paid by Price REIT for such insurance (which annual
premiums Price REIT represents and warrants to be $130,000 in the aggregate).
(c) In the event that the Surviving Corporation or any of its respective
successors or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then, and in each such case the successors
and assigns of such entity shall assume the obligations set forth in this
Section 7.13, which obligations are expressly intended to be for the irrevocable
benefit or, and shall be enforceable by, each Indemnified Party.
(d) This Section 7.13 is intended to be for the benefit of, and shall be
enforceable by, the Indemnified Parties, their heirs and personal
representatives and shall be binding on the Surviving Corporation and its
representatives, successors and assigns.
7.14. Employees.
---------
(a) Subject to considerations relating to the particular geographic
region in which the employee is located, it is the intent of the parties hereto
that the employees of Price REIT employed by the Surviving Corporation after the
Effective Time (the "Former Price REIT Employees") shall in general receive
compensation and benefits on the same basis and subject to the same standards as
the employees of Kimco; provided, that, for a period of one year after the
Closing Date the standards of compensation and benefits received by such
employees shall be substantially similar to, but not less than, those received
from Price REIT immediately prior to the Closing Date. In addition, all Former
Price REIT Employees shall, at the option of the Surviving Corporation, either
(i) continue to be eligible to participate in any "employee benefit plan," as
defined in Section 3(3) of ERISA, and any other benefit programs, policies and
arrangements of Price REIT which are, at the option of the Surviving
Corporation, continued by the Surviving Corporation, or alternatively shall be
eligible to participate in the same manner as other similarly situated employees
of the Surviving Corporation who were formerly employees of Kimco in any
"employee benefit plan," as defined in Section 3(3) of ERISA, and any other
benefit programs, policies and arrangements sponsored or maintained by the
Surviving Corporation after the Effective Time. With respect to each such
employee benefit plan, program, policy or arrangement, service with Price REIT
or any of its Subsidiaries (as applicable) shall be included for purposes of
determining eligibility to participate, vesting (if applicable) and entitlement
to benefits. The medical plan or plans maintained by the Surviving Corporation
after the Effective Time shall waive all limitations as to pre-existing
conditions, exclusions and waiting periods with respect to participation and
45
coverage requirements applicable to Former Price REIT Employees. With respect to
vacation benefits provided by the Surviving Corporation, the vacation benefit of
each Former Price REIT Employee shall include all hours of accrued but unused
vacation hours with Price REIT or its affiliates. Nothing in this Section 7.14
shall require Kimco to continue the employment of any particular Price REIT
employee from and after the Closing Date.
(b) For purposes of this Section 7.14, the term "employees" shall mean
all current employees of Price REIT and its Subsidiaries (including those on
disability or approved leave of absence, paid or unpaid).
(c) As of the Effective Time, the Surviving Corporation shall adopt a
retention and severance program (the "Retention and Severance Program"). With
respect to the Covered Employees (as defined below), the Surviving Corporation
shall issue to such Covered Employees a letter substantially in the form
previously agreed upon by the parties. The Surviving Corporation shall maintain
the Retention and Severance Program in accordance with the terms thereof. Both
(i) the employees of Price REIT and its Subsidiaries who will participate in the
Retention and Severance Program (the "Covered Employees") and (ii) the aggregate
obligation of the Surviving Corporation under the Retention and Severance
Program shall be determined in the discretion of Joseph K. Kornwasser, subject
to the approval of Kimco, which approval shall not be unreasonably withheld.
(d) Concurrently with the execution and delivery of this Agreement,
Kimco will enter into an employment agreement in the forms attached hereto with
each of Joseph K. Kornwasser, Jerald Friedman and Lawrence M. Kronenberg, each
of which shall become effective at, and only upon the occurrence of, the
Effective Time.
(e) Kimco agrees that options to purchase an aggregate of 60,000 shares
of Kimco Common Stock shall be available for grant on the Closing date, pursuant
to Kimco's Amended and Restated Stock Option Plan, to be allocated to
individuals in the discretion of Joseph K. Kornwasser, subject to the approval
of Kimco, which approval shall not be unreasonably withheld. The exercise price
of each such option shall be the closing price of a share of Kimco Common Stock
on the Closing Date, as reported by the NYSE.
7.15. Reorganization. From and after the date hereof and until the
Effective Time, neither Kimco nor Price REIT nor any of their respective
Subsidiaries or other affiliates shall (i) knowingly take any action, or
knowingly fail to take any action that would jeopardize qualification of the
Merger as a reorganization within the meaning of Section 368(a) of the Code; or
(ii) enter into any contract, agreement, commitment or arrangement with respect
to the foregoing.
46
7.16. Advice of Changes. Kimco and Price REIT shall each promptly advise
the other party orally and in writing to the extent it has knowledge of (i) any
representation or warranty made by it contained in this Agreement that is
qualified as to materiality becoming untrue or inaccurate in any respect or any
such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect, (ii) the failure by it to comply in any
material respect with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement, and
(iii) any change or event having, or which, insofar as can reasonably be
foreseen, could reasonably be expected to have a material adverse effect on such
party or on the truth of their respective representations and warranties or the
ability of the conditions set forth in Article 8 to be satisfied; provided,
however, that no such notification shall affect the representations, warranties,
covenants or agreements of the parties (or remedies with respect thereto) or the
conditions to the obligations of the parties under this Agreement.
7.17. Disqualifying Event. In connection with the transactions
contemplated by the Merger, the Board of Directors of Price REIT shall not
exercise any power, and shall waive any right at any time, to take any action to
declare a Disqualifying Event (as such term is defined in Price REIT's charter)
under Article IX of Price REIT's charter or to redeem or to refuse to transfer
shares of Price REIT Common Stock pursuant thereto.
7.18. Governance. Kimco's Board of Directors shall take all action
necessary to cause the directors comprising the full Board of Directors of Kimco
at the Effective Time to be increased by one Director and shall take all such
action necessary to cause Joseph K. Kornwasser to be selected as a Director of
Kimco for a term expiring at the 1999 annual meeting of shareholders following
the Effective Time, in order to fill the vacancy resulting from such newly
created directorship; provided that, notwithstanding the foregoing, in the event
the 1998 annual meeting of Kimco is held after the Effective Time, Joseph K.
Kornwasser shall be among the nominees submitted to the stockholders of Kimco at
the 1998 annual meeting of shareholders to vote on the election of directors for
the term set forth above in accordance with Maryland law.
ARTICLE 8
CONDITIONS
8.1. Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each party to effect the Merger shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions:
47
(a) This Agreement and the transactions contemplated hereby shall have
been approved in the manner required by applicable law or by applicable
regulations of any stock exchange or other regulatory body by the holders of the
issued and outstanding shares of capital stock of Price REIT and Kimco entitled
to vote thereon.
(b) Neither of the parties hereto shall be subject to any order or
injunction of a court of competent jurisdiction which prohibits the consummation
of the transactions contemplated by this Agreement. In the event any such order
or injunction shall have been issued, each party agrees to use its reasonable
efforts to have any such injunction lifted.
(c) The Form S-4 shall have become effective and all necessary state
securities law or "Blue Sky" permits or approvals required to carry out the
transactions contemplated by this Agreement shall have been obtained and no stop
order with respect to any of the foregoing shall be in effect.
(d) Kimco shall have obtained the approval for the listing of the Kimco
Common Stock and Kimco Depositary Shares issuable in the Merger on the NYSE,
subject to official notice of issuance.
(e) All consents, authorizations, orders and approvals of (or filings or
registrations with) any governmental commission, board, other regulatory body or
third parties required in connection with the execution, delivery and
performance of this Agreement shall have been obtained or made, except for
filings in connection with the Merger and any other documents required to be
filed after the Effective Time and except where the failure to have obtained or
made any such consent, authorization, order, approval, filing or registration
would not have a material adverse effect on the business, results of operations
or financial condition of Kimco and Price REIT (and their respective
Subsidiaries), taken as a whole, following the Effective Time.
8.2. Conditions to Obligations of Price REIT to Effect the Merger. The
obligation of Price REIT to effect the Merger shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions, unless
waived by Price REIT:
(a) Kimco shall have performed its agreements contained in this
Agreement required to be performed on or prior to the Closing Date and the
representations and warranties of Kimco and Merger Sub contained in this
Agreement that are qualified as to materiality or as to a Kimco Material Adverse
Effect shall be true and correct and any of such representations and warranties
that are not so qualified shall be true and correct in all material respects, in
each case, as of the Closing Date as if made on the Closing Date (except to the
extent that the representation or warranty is expressly limited by its terms to
another date), and Price REIT shall have received a certificate of the President
or a Vice
48
President of Kimco, dated the Closing Date, certifying to such effect.
(b) Price REIT shall have received the opinion dated the Closing Date of
Gibson, Dunn & Crutcher LLP or another nationally recognized law firm selected
by Price REIT, based upon certificates and letters, which certificates and
letters are in the form agreed upon by the parties and are dated the Closing
Date, to the effect that the Merger will be treated for Federal income tax
purposes as a reorganization within the meaning of Section 368(a) of the Code,
and that Price REIT and Kimco will each be a party to that reorganization within
the meaning of Section 368(b) of the Code.
(c) Price REIT shall have received the opinion of Brown & Wood LLP in
the form attached as Exhibit C hereto (based upon customary representations in
the form attached thereto), dated the Closing Date, to the effect that,
commencing with its taxable year ended December 31, 1992, Kimco was organized in
conformity with the requirements for qualification and taxation as a REIT under
Section 856 of the Code, and its method of operation has enabled it and will
enable it to continue to meet the requirements for qualification and taxation as
a REIT under the Code.
(d) Price REIT shall have received the opinion of Ballard Spahr Andrews
& Ingersoll, which is acting as Maryland counsel to Price REIT, to the effect
that all requisite approvals of the Merger by the stockholders of Price REIT
have been obtained, that assuming due authorization and approval of the Merger
and the Articles of Merger by Kimco and its stockholders, upon filing of the
Articles of Merger with the SDAT, the Merger will be effective, and as to such
other matters of Maryland law as are customary in a transaction such as the
Merger.
(e) Price REIT shall have received a "comfort" letter from Coopers &
Lybrand, L.L.P., dated the Closing Date, with respect to the financial
statements of Kimco included in the Proxy Statement/Prospectus, substantially in
the form described in Section 7.4.
(f) From the date of this Agreement through the Effective Time, there
shall not have occurred any change in the financial condition, business or
operations of Kimco and its Subsidiaries, taken as a whole, that would have or
would be reasonably likely to have a Kimco Material Adverse Effect other than
any such change that results from a decline or deterioration in general economic
conditions or in conditions in the real estate markets in which either Price
REIT or Kimco operate and that affects both Price REIT and Kimco in a
substantially similar manner.
8.3. Conditions to Obligation of Kimco and Merger Sub to
Effect the Merger. The obligations of Kimco and Merger Sub to
effect the Merger shall be subject to the fulfillment at or prior
49
to the Closing Date of the following conditions, unless waived by
Kimco:
(a) Price REIT shall have performed its agreements contained in this
Agreement required to be performed on or prior to the Closing Date and the
representations and warranties of Price REIT contained in this Agreement that
are qualified as to materiality or as to a Price REIT Material Adverse Effect
shall be true and correct and any such representations and warranties that are
not so qualified shall be true and correct in all material respects, in each
case, as of the Closing Date as if made on the Closing Date (except to the
extent that the representation or warranty is expressly limited by its terms to
another date), and Kimco shall have received a certificate of the President or a
Vice President of Price REIT, dated the Closing Date, certifying to such effect.
(b) Kimco shall have received the opinion dated the Closing Date of
Brown & Wood LLP or another nationally recognized law firm selected by Kimco,
based upon certificates and letters, which certificates and letters are in the
form agreed to by the parties and are dated the Closing Date, to the effect that
the Merger will be treated for Federal income tax purposes as a reorganization
within the meaning of Section 368(a) of the Code, and that Kimco and Price REIT
will each be a party to that reorganization within the meaning of Section 368(b)
of the Code.
(c) Kimco shall have received the opinion of Gibson, Dunn & Crutcher LLP
in the form attached as Exhibit D hereto (based upon customary representations
in the form attached thereto), dated the Closing Date, to the effect that,
commencing with its taxable year ended December 31, 1991, Price REIT was
organized in conformity with the requirements for qualification and taxation as
a REIT under Section 856 of the Code, and its method of operation has enabled it
and will enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Code.
(d) Kimco shall have received the opinion of Brown & Wood LLP, which is
acting as Maryland counsel to Kimco, to the effect that this Agreement is
enforceable under New York law, that all requisite approvals of the Merger by
the stockholders of Kimco have been obtained, that assuming due authorization
and approval of the Merger and the Articles of Merger by Price REIT and its
stockholders, upon filing of the Articles of Merger with the SDAT, the Merger
will be effective, and as to such other matters as are customary in a
transaction such as the Merger.
(e) Kimco shall have received a "comfort" letter from Ernst & Young LLP,
dated the Closing Date, with respect to the financial statements of Price REIT
included in the Proxy Statement/Prospectus, substantially in the form described
in Section 7.4.
50
(e) From the date of this Agreement through the Effective Time, there
shall not have occurred any change in the financial condition, business or
operations of Price REIT and its Subsidiaries, taken as a whole, that would have
or would be reasonably likely to have a Price REIT Material Adverse Effect other
than any such change that results from a decline or deterioration in general
economic conditions or in conditions in the real estate markets in which either
Price REIT or Kimco operate and that affects both Price REIT and Kimco in a
substantially similar manner.
ARTICLE 9
TERMINATION
9.1. Termination by Mutual Consent. This Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time, before or
after the approval of this Agreement by the stockholders of Price REIT or Kimco,
by the mutual written consent of Kimco and Price REIT.
9.2. Termination by Either Kimco or Price REIT. This Agreement may be
terminated and the Merger may be abandoned by action of the Board of Directors
of Price REIT or the Board of Directors of Kimco if (a) the Merger shall not
have been consummated by June 30, 1998 or (b) a meeting of Price REIT's
stockholders shall have been duly convened and held and the approval of Price
REIT's stockholders required by Section 8.1(a) shall not have been obtained at
such meeting or at any adjournment thereof, or (c) a meeting of Kimco's
stockholders shall have been duly convened and held and the approval of Kimco's
stockholders required by Section 8.1(a) shall not have been obtained at such
meeting or at any adjournment thereof, or (d) a United States federal or state
court of competent jurisdiction or United States federal or state governmental,
regulatory or administrative agency or commission shall have issued an order,
decree or ruling or taken any other action permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement and such
order, decree, ruling or other action shall have become final and
non-appealable, provided, that the party seeking to terminate this Agreement
pursuant to this clause (d) shall have used all reasonable efforts to remove
such order, decree, ruling or injunction; and provided, in the case of a
termination pursuant to clause (a) above, that the terminating party shall not
have breached in any material respect its obligations under this Agreement in
any manner that shall have proximately contributed to the occurrence of the
failure referred to in said clause.
9.3. Termination by Price REIT. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, before or after
the adoption and approval by the
51
stockholders of Price REIT referred to in Section 8.1(a), by action of the Board
of Directors of Price REIT, (a) in accordance with Section 7.1(b); provided,
however, that in order for the termination of this Agreement pursuant to this
Section 9.3(a) to be deemed effective, Price REIT shall have complied with all
provisions contained in Section 7.1, including the notice provisions therein,
and with applicable requirements, including the payment of all amounts due under
Section 9.5 or (b) if Kimco or any of its directors or officers shall
participate in discussions or negotiations in breach of Section 7.2, or (c) if
there has been a breach by Kimco or Merger Sub of any representation or warranty
contained in this Agreement which would have or would be reasonably likely to
have a Kimco Material Adverse Effect, which breach is not curable by June 29,
1998, or (d) if there has been a material breach of any of the covenants or
agreements set forth in this Agreement on the part of Kimco, which breach is not
curable or, if curable, is not cured within 30 days after written notice of such
breach is given by Price REIT to Kimco. Notwithstanding the foregoing, any
termination pursuant to Section 9.3(a) shall only be effective if,
simultaneously with such termination, all sums that Price REIT is required to
pay to Kimco or deposit with the escrow agent pursuant to Section 9.5 have been
paid or deposited in immediately available funds.
9.4. Termination by Kimco. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, before or after
the approval by the stockholders of Kimco referred to in Section 8.1(a), by
action of the Board of Directors of Kimco, (a) in accordance with Section
7.2(b); provided, however, that in order for the termination of this Agreement
pursuant to this Section 9.4(a) to be deemed effective, Kimco shall have
complied with all provisions contained in Section 7.2, including the notice
provisions therein, or (b) if Price REIT or any of its directors or officers
shall participate in discussions or negotiations in breach of Section 7.1, or
(c) if there has been a breach by Price REIT of any representation or warranty
contained in this Agreement which would have or would be reasonably likely to
have a Price REIT Material Adverse Effect, which breach is not curable by June
29, 1998, (d) there has been a material breach of any of the covenants or
agreements set forth in this Agreement on the part of Price REIT, which breach
is not curable or, if curable, is not cured within 30 days after written notice
of such breach is given by Kimco to Price REIT or (e) in the event the Kimco
Average Closing Price or the closing price of Kimco Common Stock on the date
scheduled for the Closing or on either of the two immediately preceding business
days is less than $32.00.
9.5. Certain Fees and Expenses Upon Effect of Termination and
Abandonment. (a) If this Agreement shall be terminated (i) pursuant to Section
9.3(a), 9.4(b) or 9.4(d) (to the extent such termination pursuant to Section
9.4(d) results from a material breach by Price REIT of the covenants set forth
in Sections
52
7.3(i)(a), 7.3(i)(c), 7.3(ii) (other than 7.3(ii)(c), 7.3(ii)(j) and 7.3(ii)(m)
as it applies to Sections 7.3(ii)(c) and 7.3(ii)(j)), 7.5, 7.8 or 7.17;
provided, that, the Board of Directors of Kimco makes a good faith determination
that such breach materially impairs either the ability to consummate the Merger
on the terms contemplated herein as of the date hereof or the economic benefit
of the Merger to Kimco anticipated at the date hereof), then Price REIT will pay
Kimco (provided Price REIT was not entitled to terminate this Agreement pursuant
to Section 9.3(c) or 9.3(d) at the time of such termination) a fee equal to the
Break-up Fee (as defined below) or (ii) pursuant to Section 9.4(c), 9.4(d) (to
the extent such termination pursuant to Section 9.4(d) results from a material
breach by Price REIT of any of its covenants in this Agreement other than those
enumerated in clause (i) of this Section 9.5(a) to the extent that the Board of
Directors of Kimco has made the determination set forth in the first proviso of
said clause (i)) or 9.2(b), then Price REIT will pay Kimco (provided Price REIT
was not entitled to terminate this Agreement pursuant to Section 9.3(c) or
9.3(d) at the time of such termination) an amount equal to the Break-Up Expenses
(as defined below).
(b) If this Agreement shall be terminated (i) pursuant to Section
9.4(e), then Kimco will pay Price REIT (provided Kimco was not entitled to
terminate this Agreement pursuant to Section 9.4(b) or 9.4(c) at the time of
such termination) an amount equal to $6,250,000, (ii) pursuant to Section 9.4(a)
or 9.3(b), then Kimco will pay to Price REIT (provided Kimco was not entitled to
terminate this Agreement pursuant to Section 9.4(c) or 9.4(d) at the time of
such termination) a fee equal to the Break-up Fee or (iii) pursuant to Section
9.3(c), 9.3(d) or 9.2(c), then Kimco will pay Price REIT (provided Kimco was not
entitled to terminate this Agreement pursuant to Section 9.4(c) or 9.4(d) at the
time of such termination) an amount equal to the Break-Up Expenses.
(c) If the Merger is not consummated (other than due to the termination
of this Agreement pursuant to Section 9.1 or 9.2(c) or Kimco's failure to
perform its obligations under this Agreement in such a manner so as to entitle
Price REIT to terminate this Agreement pursuant to Section 9.3(c) or 9.3(d)) and
at the time of the termination of this Agreement a Price REIT Takeover Proposal
has been received by Price REIT, and either prior to the termination of this
Agreement or within twelve (12) months thereafter Price REIT enters into any
written Price REIT Acquisition Agreement which is subsequently consummated
(whether or not such Price REIT Acquisition Agreement is related to the Price
REIT Takeover Proposal which had been received at the time of the termination of
this Agreement), then Price REIT shall pay the Break-Up Fee to Kimco. If the
Merger is not consummated (other than due to the termination of this Agreement
pursuant to Section 9.1 or 9.2(b) or Price REITs's failure to perform its
obligations under this Agreement in such a manner so as to entitle Kimco to
53
terminate this Agreement pursuant to Section 9.4(c) or 9.4(d)) and at the time
of the termination of this Agreement a Kimco Takeover Proposal has been received
by Kimco, and either prior to the termination of this Agreement or within twelve
(12) months thereafter Kimco enters into any written Kimco Acquisition Agreement
which is subsequently consummated (whether or not such Kimco Acquisition
Agreement is related to the Kimco Takeover Proposal which had been received at
the time of the termination of this Agreement), then Kimco shall pay the
Break-Up Fee to Price REIT. Any and all amounts to be paid pursuant to this
Section 9.5, shall be paid, by Price REIT to Kimco or Kimco to Price REIT (as
applicable), in immediately available funds within three days of termination
(except as otherwise provided in Section 9.3).
(d) As used in this Agreement, "Break-Up Fee" shall be an amount equal
to the lesser of (i) $12,500,000 plus Break-Up Expenses (the "Base Amount") and
(ii) the maximum amount that can be paid to Kimco without causing it to fail to
meet the requirements of Sections 856(c)(2) and (3) of the Code determined as if
the payment of such amount did not constitute income described in Sections
856(c)(2)(A)-(H) and 856(c)(3)(A)-(I) of the Code ("Qualifying Income"), as
determined by independent accountants to the party hereto which becomes entitled
to the Break-Up Fee (the "Fee Recipient"). Notwithstanding the foregoing, in the
event the Fee Recipient receives a letter from outside counsel (the "Break-Up
Fee Tax Opinion") indicating that the Fee Recipient has received a ruling from
the IRS holding that the Fee Recipient's receipt of the Base Amount would either
constitute Qualifying Income or would be excluded from gross income within the
meaning of Sections 856(c)(2) and (3) of the Code (the "REIT Requirements"), the
Break-Up Fee shall be an amount equal to the Base Amount. The obligation of the
party required to pay the Break-Up Fee to pay any unpaid portion of the Break-Up
Fee shall terminate five years from the date of this Agreement. In the event
that the Fee Recipient is not able to receive the full Base Amount, the other
party shall place the unpaid amount in escrow by wire transfer within three days
of termination (except as otherwise provided in Section 9.3) and shall not
release any portion thereof to the Fee Recipient unless and until the other
party receives either one or a combination of the following: (i) a letter from
the Fee Recipient's independent accountants indicating the maximum amount that
can be paid at that time to the Fee Recipient without causing the Fee Recipient
to fail to meet the REIT Requirements or (ii) a Break-Up Fee Tax Opinion, in
either of which events the other party shall pay to the Fee Recipient the lesser
of the unpaid Base Amount or the maximum amount stated in the letter referred to
in (i) above. Each of Price REIT and Kimco agrees to amend this Section 9.5 at
the request of the Fee Recipient in order to (x) maximize the portion of the
Break-Up Fee that may be distributed to the Fee Recipient hereunder without
causing the Fee Recipient to fail to meet the requirements of Sections 856
(c)(2) and (3) of the Code or (y) improve the Fee Recipient's chances of
securing a
54
favorable ruling described in this Section 9.5(b), provided that no such
amendment may result in any additional cost or expense to the other party.
Amounts remaining in escrow after the obligation of a party to pay the Break-Up
Fee terminates shall be released to the party making such escrow deposit.
(e) The "Break-Up Expenses" payable to Kimco or Price REIT, as the case
may be (the "Expenses Recipient"), shall be an amount equal to the lesser of (i)
$2,000,000, (ii) the Expenses Recipient's out-of-pocket expenses incurred in
connection with this Agreement and the transactions contemplated hereby
(including, without limitation, all attorneys', accountants and investment
bankers' fees and expenses) and (iii) the maximum amount that can be paid to the
Expenses Recipient without causing it to fail to meet the requirements of
Sections 856(c)(2) and (3) of the Code determined as if the payment of such
amount did not constitute Qualifying Income, as determined by independent
accountants to the Expenses Recipient. Notwithstanding the foregoing, in the
event the Expenses Recipient receives a letter from outside counsel (the
"Break-Up Fee Tax Opinion") indicating that the Expenses Recipient has received
a ruling from the IRS holding that the Expenses Recipient's receipt of the
Break-Up Expenses would either constitute Qualifying Income or would be excluded
from gross income within the meaning of the REIT Requirements, the Break-Up
Expenses shall be determined without regard to clause (iii) above. The
obligation of Kimco or Price REIT, as applicable ("Payor"), to pay any unpaid
portion of the Break-Up Expenses shall terminate five years from the date of
this Agreement. In the event that the Expenses Recipient is not able to receive
the full Break-Up Expenses, the Payor shall place the unpaid amount in escrow
and shall not release any portion thereof to the Expenses Recipient unless and
until the Payor receives any one or combination of the following: (i) a letter
from the Expenses Recipient's independent accountants indicating the maximum
amount that can be paid at the time to the Expenses Recipient without causing
the Expenses Recipient to fail to meet the REIT Requirements or (ii) a Break-Up
Expense Tax Opinion, in either of such events the Payor shall pay to the
Expenses Recipient the lesser of the unpaid Break-Up Expenses or the maximum
amount stated in the letter referred to in (i) above. Amounts remaining in
escrow after the obligation of a party to pay the Break-Up Expenses terminates
shall be released to the party making such escrow deposit.
(f) In the event of termination of this Agreement and the abandonment of
the Merger pursuant to this Article 9, all obligations of the parties hereto
shall terminate, except the obligations of the parties pursuant to this Section
9.5 and Section 7.12 and except for the provisions of Section 10.3, 10.4, 10.5,
10.6, 10.7, 10.9, 10.10, 10.13, 10.14 and 10.15. In the event either party is
required to file suit to seek all or a portion of Break-up Fee and/or Break-up
Expenses, and it ultimately succeeds,
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it shall be entitled to all expenses, including attorneys' fees and expenses,
which it has incurred in enforcing its rights hereunder.
9.6. Extension; Waiver. At any time prior to the Effective Time, any
party hereto, by action taken by its Board of Directors, may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE 10
GENERAL PROVISIONS
10.1. Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall not survive the Merger,
provided, however, that the agreements contained in Article 4, the last sentence
of Section 7.5 and Sections 7.11, 7.13 and 7.14, and this Article 10 shall
survive the Merger.
10.2. Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) and addressed as follows:
If to Kimco or Merger Sub:
Milton Cooper
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, NY 11042-0020
Facsimile: (516) 869-7117
With a copy to:
Joseph W. Armbrust, Esq.
Brown & Wood LLP
One World Trade Center
New York, NY 10048
Facsimile: (212) 839-5599
If to Price REIT:
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Joseph K. Kornwasser
The Price REIT, Inc.
145 South Fairfax Avenue
Fourth Floor
Los Angeles, CA 90036
Facsimile: (213) 937-8175
With a copy to:
Kenneth M. Doran, Esq.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Facsimile: (213) 229-7520
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
delivered.
10.3. Assignment; Binding Effect; Benefit. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Sections 7.13 and 7.14(e) (collectively, the "Third Party Provisions"),
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective heirs, successors,
executors, administrators and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. The Third Party Provisions may
be enforced by the beneficiaries thereof.
10.4. Entire Agreement. This Agreement, the Exhibits, the Price REIT
Disclosure Letter and the Kimco Disclosure Letter and any documents delivered by
the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
10.5. Confidentiality. (a) Except to the extent that any of the
provisions of that certain confidentiality agreement dated December 9, 1997
between Kimco and Price REIT (the "Confidentiality Agreement") are inconsistent
with this Agreement, in which case the terms of this Agreement shall govern and
supersede such provisions, the parties hereto acknowledge and agree that the
Confidentiality
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Agreement remains in full force and effect and shall survive any termination of
this Agreement.
(b) Each party hereto further agrees that if this Agreement is
terminated in accordance with its terms, until June 30, 1998, (1) it will not
offer to hire or hire any person currently or formerly employed by the other
party with whom such party has had contact prior hereto other than persons whose
employment shall have been terminated by such other party prior to the date of
such offer to hire or hiring and (2) neither it nor its Affiliates shall,
directly or indirectly, (A) (w) solicit, seek or offer to effect or effect, (x)
negotiate with or provide any information to the Board of Directors of the other
party, any director or officer of the other party or any stockholder of the
other party with respect to, (y) make any statement or proposal, whether written
or oral, either alone or in concert with others, to the Board of Directors of
the other party, any director or officer of the other party or any stockholder
of the other party or any other person with respect to, or (z) make any public
announcement (except as required by law in respect of actions permitted hereby)
or proposal or offer whatsoever (including, but not limited to, any
"solicitation" of "proxies" as such terms are defined or used in Regulation 14A
of the Exchange Act) with respect to, (i) any form of business combination or
similar or other extraordinary transaction involving the other party or any
Affiliate thereof, including, without limitation, a merger, tender or exchange
offer or liquidation of the other party's assets, (ii) any form of
restructuring, recapitalization or similar transaction with respect to the other
party or any Affiliate thereof, (iii) any purchase of any securities or assets,
or rights or options to acquire any securities or assets (through purchase,
exchange, conversion or otherwise), of the other party or any Affiliate thereof,
(iv) any proposal to seek representation on the Board of Directors of the other
party or otherwise to seek to control or influence the management, Board of
Directors or policies of the other party or any Affiliate thereof, (v) any
request or proposal to waive, terminate or amend the provisions of this Section
10.5, or (vi) any proposal or other statement inconsistent with the terms of
this Section 10.5 or (B) instigate, encourage, join, act in concert with or
assist (including, but not limited to, providing or assisting in any way in the
obtaining of financing for, or acting as a joint or co-bidder for the other
party with) any third party to do any of the foregoing, unless and until such
party has received the prior written invitation or approval of a majority of the
Board of Directors of the other party to do any of the foregoing; provided that
without such invitation or approval, either party may at any time, on a
confidential, non-public basis, submit to the Chief Executive Officer or, if
none, the President of the other party a proposal to (I) amend any of the
provisions of this Section 10.5(e) or (II) effect a business combination or
other extraordinary transaction with the other party providing for the
acquisition of all or substantially all of the assets or the securities of the
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other party, including, without limitation, a merger, tender offer or exchange
offer. Each party hereto agrees that it will not agree with any third party not
to waive its rights under this Section 10.5.
10.6. Amendment. This Agreement may be amended by the parties hereto, by
action taken by their respective Boards of Directors, at any time before or
after approval of matters presented in connection with the Merger by the
stockholders of Price REIT and Kimco and prior to the filing of the Articles of
Merger with the State Department of Assessments and Taxation of Maryland;
provided, however, that after any such stockholder approval is obtained, no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. The parties agree to amend
this Agreement in the manner provided in the immediately preceding sentence to
the extent required to (a) continue the status of the parties as REITs or (b)
preserve the Merger as a tax-free reorganization under Section 368 of the Code.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
10.7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to its rules
of conflict of laws, except that the validity of the Merger shall be governed by
the MGCL. Each of Price REIT and Kimco hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State of
New York and of the United States of America located in the State of New York
(the "New York Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the New York Courts and agrees not
to plead or claim in any New York Court that such litigation brought therein has
been brought in an inconvenient forum.
10.8. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
10.9. Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
10.10. Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall
include the plural and vice versa, and words denoting any gender
59
shall include all genders and words denoting natural persons shall include
corporations and partnerships and vice versa.
10.11. Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other party, (b) waive any inaccuracies in the representations
or warranties of the other party contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) subject to the proviso of Section
10.6, waive compliance with any of the agreements or conditions of the other
party contained in this Agreement. Any agreement on the part of a party to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
10.12. Incorporation. The Price REIT Disclosure Letter, the
Confidentiality Agreement and the Kimco Disclosure Letter and all Exhibits
attached hereto and thereto and referred to herein and therein are hereby
incorporated herein and made a part hereof for all purposes as if fully set
forth herein.
10.13. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
10.14. Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any New York Court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
10.15. Definitions. As used in this Agreement: (a) "Subsidiary" when
used with respect to any party means any corporation, partnership, limited
liability company, joint venture, business trust or other entity, of which such
party directly or indirectly owns or controls at least a majority of the
securities or other interests having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization; and (b)
"knowledge" or "best knowledge" of any person
60
means the actual knowledge of such person or of such person's directors and
executive officers after reasonable inquiry.
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
KIMCO REALTY CORPORATION
ATTEST:
By:/s/ Peter T. Simor By:/s/ Milton Cooper
---------------------------------- -------------------------------
REIT SUB, INC.
ATTEST:
By:/s/ Lawrence M. Kronenberg By:/s/ Joseph K. Kornwasser
---------------------------------- -------------------------------
THE PRICE REIT, INC.
ATTEST:
By:/s/ Lawrence M. Kronenberg By:/s/ Joseph K. Kornwasser
---------------------------------- -------------------------------
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