EXHIBIT 2.1
This AMENDMENT NO. 1, dated as of October 30, 2006 (this
"AMENDMENT"), to the Agreement and Plan of Merger, dated as of July 9, 2006 (the
"MERGER AGREEMENT"), is by and among Kimco Realty Corporation, a Maryland
corporation ("PARENT"), KRC Acquisition Inc., a Maryland corporation and
indirect subsidiary of Parent ("MERGER SUB"), KRC CT Acquisition Limited
Partnership, a Delaware limited partnership ("CTOP MERGER SUB"), KRC PC
Acquisition Limited Partnership, a Delaware limited partnership ("PINECREEK
MERGER SUB"), Pan Pacific Retail Properties, Inc., a Maryland corporation (the
"COMPANY"), CT Operating Partnership, L.P., a California limited partnership
("CTOP") and Western/Pinecreek, L.P., a Delaware limited partnership ("PINECREEK
OP").
WITNESSETH:
WHEREAS, Parent, Merger Sub, CTOP Merger Sub, the Company, CTOP and
Pinecreek OP (together, the "PARTIES") have entered into the Merger Agreement;
WHEREAS, the Effective Time has not yet occurred;
WHEREAS, subject to the terms and conditions set forth in this
Amendment, the Parties desire to amend the Merger Agreement by entering into
this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing recitals
and of the mutual covenants contained in this Amendment, the parties hereto do
hereby agree as follows:
1. CTOP AND PINECREEK MERGERS. The parties agree, that notwithstanding the
provisions of the Merger Agreement to the contrary, there shall be no
requirement for the parties to consummate the CTOP Merger or the Pinecreek
Merger, and Merger Agreement is hereby amended to the extent necessary to strike
references to the CTOP Merger, Pinecreek Merger, CTOP Effective Time, Pinecreek
Effective Time, CTOP Certificates of Merger, Pinecreek Certificate of Merger,
Company OP Units and OP Unit Certificates, and to otherwise give effect to this
Amendment.
2. OTHER MERGER AGREEMENT PROVISIONS. The last sentence of Section 6.13 of
the Merger Agreement is hereby amended and restated in its entirety as follows:
"At Parent's request, immediately prior to the Effective Time, the Company
shall declare and pay a dividend to holders of Company Common Stock in an
amount equal to the net proceeds of any Asset Sales, and the Cash
Consideration will be reduced by the amount of such dividend, if any."
3. FORM OF AFFILIATE LETTER. Exhibit A of the Merger Agreement (Form of
Affiliate Letter) is hereby amended to the extent necessary to give effect
to this Amendment.
4. GENERAL PROVISIONS.
(a) MODIFICATION; FULL FORCE AND EFFECT. Except as expressly modified
and superseded by this Amendment, the terms and provisions of the Merger
Agreement are and shall continue to be in full force and effect.
(b) DEFINITIONS. Capitalized terms used herein without definition
shall have the meanings ascribed to such terms in the Merger Agreement.
(c) OTHER MISCELLANEOUS TERMS. The provisions of Article IX
(Miscellaneous) of the Merger Agreement shall apply MUTATIS MUTANDIS to this
Amendment.
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IN WITNESS WHEREOF, this Amendment has been signed by or on behalf of each of
the parties as of the day first above written.
KIMCO REALTY CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
KRC ACQUISITION INC.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
KRC CT ACQUISITION LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
KRC PC ACQUISITION LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
[Signature Page to Amendment No. 1 to the Merger Agreement]
PAN PACIFIC RETAIL PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Exec. VP, Chief Financial Officer,
Treasurer and Secretary
CT OPERATING PARTNERSHIP, L.P.
By: Pan Pacific (CTA), Inc., a Maryland
Corporation, its General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Exec. VP, Chief Financial Officer,
Treasurer and Secretary
WESTERN/PINECREEK, L.P.
By: /s/ Xxxxxx X. Xxxxx
----------------------
Name: Xxxxxx X. Xxxxx
Title: Exec. VP, Chief Financial Officer,
Treasurer and Secretary
[Signature Page to Amendment No. 1 to the Merger Agreement]
