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FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT (the "First Amendment") to Agreement and Plan of
Merger (the "Original 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").
WHEREAS, each of Kimco, Merger Sub and Price REIT has entered into the
Original Agreement and now desires to make certain changes to the Original
Agreement;
WHEREAS, the Boards of Directors of Kimco, Merger Sub and Price REIT
have approved the changes to the Original Agreement set forth in this First
Amendment.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions herein, the parties hereby
agree as follows:
1. Section 4.1(b) is hereby deleted in its entirety and replaced by
the following:
"(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 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 Price and the denominator of which is $25.00; provided,
however, that if the Kimco Average 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 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 denominator
of which is $50.00;
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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 Price" shall be the average of the Average Prices
(as defined herein) of the Kimco Common Stock for fifteen (15)
randomly selected trading days within the thirty (30) consecutive
trading days ending on and including the seventh trading day
immediately preceding the date of the special meeting of Kimco's
stockholders contemplated by Section 7.4 hereof. The "Average Price"
for any day means the average of the daily high and low prices of
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. The random selection of trading days
shall be made under the joint supervision of the financial advisors
retained by the parties in connection with the transactions
contemplated hereby. 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."
2. All references in the Original Agreement to the "Kimco Average
Closing Price" shall be amended to refer to the "Kimco Average Price."
3. Except as expressly amended by this First Amendment, the Original
Agreement and all of its terms, covenants, conditions and provisions are hereby
ratified and confirmed in all respects and shall continue in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment and caused it to be delivered on their behalf as of the 5th day of
March, 1998.
ATTEST: KIMCO REALTY CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXXX By: /s/ XXXXXX XXXXXX
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Xxxxxxx X. Xxxxxxxxxx Xxxxxx Xxxxxx
ATTEST: REIT SUB, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX By: /s/ XXXXXX XXXXXX
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Xxxxxxx X. Xxxxxxxxxx Xxxxxx Xxxxxx
ATTEST: THE PRICE REIT, INC.
By: /s/ XXXXXXXX X. XXXXXXXXXX By: /s/ XXXXXX XXXXXXXX
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Xxxxxxxx X. Xxxxxxxxxx Xxxxxx Xxxxxxxx
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