| Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Securities and the Common Stock. |
Arrangements Concerning the Securities
As of the date hereof, there were outstanding 1,848,459 Securities.
The Company does not, and does not believe after reasonable inquiry that any of its executive officers and directors or any associates or majority-owned subsidiaries of the Company, beneficially owns any of the Securities.
Based on the Company’s records and on information provided to it by its executive officers, directors, affiliates and subsidiaries, neither the Company nor any of its affiliates or subsidiaries nor, to its knowledge after reasonable inquiry, any of the Company’s or its subsidiaries’ directors or executive officers, nor any associates or subsidiaries of any of the foregoing, have effected any transactions involving the Securities during the sixty days prior to , 2024.
The Company entered into a Deposit Agreement, dated January 2, 2024 (the “Deposit Agreement”), among the Company, Equiniti Trust Company, LLC, as depositary, registrar and transfer agent, and all holders from time to time of Receipts (as defined in the Deposit Agreement) governing the terms of the Securities. The terms of the Class N Preferred Stock of the Company underlying the Securities are governed by the Charter.
Except as otherwise described in this Offer to Purchase and Consent Solicitation, neither the Company nor, to its knowledge after reasonable inquiry, any of its affiliates, directors or executive officers, is a party to any contract, arrangement, understanding or relationship with any other person relating, directly or indirectly, to the Offer and Consent Solicitation or with respect to any of the Securities, including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss or the giving or withholding of proxies, consents or authorizations.
Arrangements Concerning the Common Stock
In May 2020, the Company’s stockholders approved the 2020 Equity Participation Plan (the “2020 Plan”), which is a successor to the Restated Kimco Realty Corporation 2010 Equity Participation Plan that expired in March 2020. The 2020 Plan provides for a maximum of 10.0 million shares of Common Stock to be reserved for the issuance of stock options, stock appreciation rights, restricted stock, restricted stock units, performance awards, dividend equivalents, long term incentive plan units, stock payments and deferred stock awards to eligible employees, consultants, and directors. At June 30, 2024, the Company had 3.0 million shares of Common Stock available for issuance under the 2020 Plan.
The Company accounts for equity awards in accordance with FASB’s Compensation – Stock Compensation guidance which requires that all share-based payments to employees, including grants of employee stock options, restricted stock and performance shares, be recognized in the Consolidated Statements of Income over the service period based on their fair values. Fair value of performance awards is determined using the Monte Carlo method, which is intended to estimate the fair value of the awards at the grant date. Fair value of restricted shares is based on the price on the date of grant.
| Legal Matters; Regulatory Approvals. |
The Company is not aware of any license or regulatory permit that appears material to its business that might be adversely affected by its acquisition of Securities as contemplated by the Offer and Consent Solicitation. Nor is the Company aware of any approval or other action by any government or governmental, administrative or regulatory authority or agency, domestic, foreign or supranational that would be required for the acquisition of Securities by the Company as contemplated by the Offer and Consent Solicitation other than those that have been obtained. Should any approval or other action be required, the Company presently contemplates that it will seek that approval or other action. The Company is unable to predict whether it will be required to delay the acceptance for purchase of or payment for Securities tendered under the Offer and Consent Solicitation pending the outcome of any such matter. There can be no assurance that any approval or other action, if needed, would be obtained or would be obtained without substantial cost or conditions or that the failure to obtain the approval or other action might not result in adverse consequences to its business, results of operations and/or financial condition. The obligations of the Company under the Offer and Consent Solicitation to accept for purchase and pay for Securities is subject to conditions. See Section 9.
