KIMCO REALTY CORP (Form: 8-K, Received: 12/15/2022 16:17:34)

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported) December 15, 2022

KIMCO REALTY CORPORATION

(Exact name of registrant as specified in its charter)

Maryland		1-10899		13-2744380
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

500 N. Broadway

Suite 201

Jericho, NY 11753

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (516) 869-9000

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $.01 per share.	KIM	New York Stock Exchange
Depositary Shares, each representing one-thousandth of a share of 5.125% Class L Cumulative Redeemable, Preferred Stock, $1.00 par value per share.	KIMprL	New York Stock Exchange
Depositary Shares, each representing one-thousandth of a share of 5.250% Class M Cumulative Redeemable, Preferred Stock, $1.00 par value per share.	KIMprM	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On December 15, 2022, Kimco Realty Corporation, a Maryland corporation (“Kimco”), filed with the State Department of Assessments and Taxation (the “SDAT”) articles supplementary (the “Articles Supplementary”) to its charter to reclassify all of the authorized but unissued shares of 6.000% Class I Cumulative Redeemable Preferred Stock, $1.00 par value per share, 5.625% Class K Cumulative Redeemable Preferred Stock, $1.00 par value per share, Class F Excess Preferred Stock, $1.00 par value per share, Class G Excess Preferred Stock, $1.00 par value per share, Class H Excess Preferred Stock, $1.00 par value per share, Class I Excess Preferred Stock, $1.00 par value per share, Class J Excess Preferred Stock, $1.00 par value per share, and Class K Excess Preferred Stock, $1.00 par value per share, as shares of our preferred stock without designation. There has been no increase in the authorized shares of stock of Kimco effected by the Articles Supplementary. The foregoing description of the Articles Supplementary is qualified in its entirety by the full text of the Articles Supplementary, attached as Exhibit 3.1 hereto. The Articles Supplementary were effective upon filing with the SDAT.

Item 8.01

Other Events.

On December 15, 2022, Kimco issued a press release announcing that it intends to implement a corporate reorganization into a new holding company structure commonly referred to as an umbrella partnership real estate investment trust, or UPREIT (the “Reorganization”). As part of the Reorganization, New KRC Corp. (“New Kimco”), a Maryland corporation that currently is a wholly owned subsidiary of Kimco, will become the publicly traded parent company of Kimco and its subsidiaries. New Kimco will change its name to “Kimco Realty Corporation” and is expected to qualify as a REIT for federal income tax purposes, and Kimco will convert to a Delaware limited liability company (the “LLC Conversion”) called “Kimco Realty OP, LLC” (“Kimco OP”).

New Kimco will replace Kimco as the public holding company listed on the New York Stock Exchange (the “NYSE”) and, as of the Effective Time (as defined below), (i) New Kimco common stock will trade on the NYSE on an uninterrupted basis under the existing symbol “KIM” and will retain the CUSIP number of 49446R109, and (ii) New Kimco depositary shares, each representing one-thousandth of a share of 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share of Kimco (CUSIP number 49446R737) (“Class L Preferred Stock”), and New Kimco depositary shares, each representing one-thousandth of a share of 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share of Kimco (CUSIP number 49446R711) (“Class M Preferred Stock”), will also trade on the NYSE on an uninterrupted basis under their respective existing symbols,“KIMprL” and “KIMprM,” and will retain their respective existing CUSIP numbers.

Merger

The first step of the Reorganization will be effectuated pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), dated December 15, 2022, among Kimco, New Kimco and KRC Merger Sub Corp. (“Merger Sub”), a Maryland corporation and wholly owned subsidiary of New Kimco. Pursuant to the Merger Agreement, Merger Sub will merge with and into Kimco, with Kimco continuing as the surviving corporation and a wholly owned subsidiary of New Kimco (the “Merger”). The Merger will be conducted pursuant to Section 3–106.2 of the Maryland General Corporation Law (the “MGCL”), which provides for the formation of a holding company (i.e., New Kimco) without a vote of the stockholders of the constituent corporation (i.e., Kimco). The Merger is expected to be effective as of January 1, 2023 (the “Effective Time”).

In accordance with the Merger Agreement, at the Effective Time, (i) each issued and outstanding share of common stock, par value $0.01 per share, of Kimco (“Common Stock”), Class L Preferred Stock and Class M Preferred Stock immediately prior to the Effective Time will be converted automatically into one corresponding share of common stock, par value $0.01 per share, of New Kimco (“New Kimco Common Stock”), one corresponding share of 5.125% Class L Cumulative Redeemable Preferred Stock, par value $1.00 per share, of New Kimco (“New Kimco Class L Preferred Stock”) and one corresponding share of 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share, of New Kimco (“New Kimco Class M Preferred Stock”), respectively, having the same designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding security of Kimco, (ii) each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time will be converted automatically into one corresponding share of Common Stock, (iii) each share of common stock of New Kimco issued and outstanding immediately prior to the Effective Time will be cancelled. As a result, (a) each issued and outstanding depositary share representing one-thousandth of a share of Class L Preferred Stock will be deemed to represent one-thousandth of a share of New Kimco Class L Preferred Stock and (b) each issued and outstanding depositary share representing one-thousandth of a share of Class M Preferred Stock will be deemed to represent one-thousandth of a share of New Kimco Class M Preferred Stock. Accordingly, upon consummation of the Merger, Kimco’s stockholders immediately prior to the consummation of the Merger will become stockholders of New Kimco, and Kimco will become a wholly owned subsidiary of New Kimco. The conversion of stock will occur automatically without an exchange of stock certificates at the Effective Time. Accordingly, any certificates representing outstanding shares of Common Stock, Class L Preferred Stock and Class M Preferred Stock will be deemed to represent the same number and type of shares of New Kimco.

The Reorganization, including the Merger, was unanimously approved by Kimco’s board of directors. Stockholder approval of the Merger is not required under the MGCL, and the Merger will not give rise to statutory dissenters’ rights. The Merger is expected to qualify as a reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended, and Kimco stockholders are not expected to recognize gain or loss for federal income tax purposes as a result of the Reorganization.

In addition, in accordance with the Merger Agreement, New Kimco will, at the Effective Time, assume and continue all of Kimco’s equity incentive plans and agreements, and all outstanding equity awards of Kimco shall become corresponding outstanding equity awards of New Kimco.

The consolidated assets and liabilities of New Kimco immediately following the Merger will be identical to the consolidated assets and liabilities of Kimco immediately prior to the Merger, and the officers and directors of New Kimco immediately following the Merger will be identical to the officers and directors of Kimco immediately prior to the Merger. New Kimco will not hold any assets directly other than certain de minimis assets that may be held for certain administrative functions. None of the properties owned by Kimco or its subsidiaries or any interests therein have been or will be transferred as part of the Reorganization. All material indebtedness of Kimco immediately prior to the Merger is expected to remain indebtedness of Kimco after the Merger.

LLC Conversion

Promptly after the completion of the Merger, Kimco will effect the LLC Conversion. Following the LLC Conversion, New Kimco will be the sole manager, and will initially be the sole member, of Kimco OP, and the business of New Kimco will be conducted exclusively through Kimco OP. In the future, Kimco OP may, from time to time, issue membership interests to sellers of properties in exchange for a tax-deferred contribution of those properties. Such limited membership interests will generally entitle their holders to receive the same distributions as holders of shares of New Kimco Common Stock, and the holders of such interests will generally have the right to exchange the interests for cash or shares of New Kimco Common Stock, at New Kimco’s option. Kimco OP may also issue certain equity awards in the form of membership interests to directors, officers, employees and certain other service providers of New Kimco, which will also generally be convertible into cash or shares of New Kimco Common Stock in accordance with the terms of such award.

The foregoing description of the Merger Agreement is qualified in its entirety by reference to the Merger Agreement, filed as Exhibit 2.1 to this Current Report and incorporated by reference herein. Copies of the press release and Frequently Asked Questions about the Reorganization have been filed as Exhibits 99.1 and 99.2, respectively, to this Current Report, and are incorporated herein by reference.

Forward-Looking Statements

This Current Report on Form 8-K and the accompanying press release may contain “forward-looking” statements as defined in the Private Securities Litigation Reform Act of 1995. When Kimco uses words such as “may,” “will,” “intend,” “should,” “believe,” “expect,” “anticipate,” “project,” “estimate” or similar expressions that do not relate solely to historical matters, it is making forward-looking statements. Forward-looking statements, including, but not limited to, statements regarding Kimco’s ability to complete the Reorganization, the impacts of the Reorganization on Kimco’s financial condition, business operations, financial statements, outstanding securities, material indebtedness and Kimco’s ability to realize the expected benefits of Reorganization, are not guarantees of future performance and involve risks and uncertainties that may cause Kimco’s actual results to differ materially from Kimco’s expectations discussed in the forward-looking statements. This may be a result of various factors, including, but not limited to, those factors discussed in Kimco’s reports filed from time to time with the SEC. Moreover, other risks and uncertainties of which Kimco is not currently aware may also affect the forward-looking statements contained herein and may cause actual results and the timing of events to differ materially from those anticipated. The forward-looking statements made in this communication are made only as of the date hereof or as of the dates indicated in the forward-looking statements, even if they are subsequently made available by Kimco on its website or otherwise. Kimco undertakes no obligation to update or revise publicly any forward-looking statements, whether because of new information, future events or otherwise, or to update the reasons why actual results could differ from those projected in any forward-looking statements.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.	Description
2.1	Agreement and Plan of Merger, dated December 15, 2022, by and among Kimco, New Kimco and Merger Sub.*
3.1	Articles Supplementary of Kimco Realty Corporation, dated December 15, 2022.
99.1	Press release of Kimco Realty Corporation dated December 15, 2022.
99.2	Frequently Asked Questions About the Reorganization into an UPREIT Structure dated December 15, 2022.
104	Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).

*	Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	KIMCO REALTY CORPORATION

Date: December 15, 2022	By:	/s/ Glenn G. Cohen
		Name:	Glenn G. Cohen
		Title:	Executive Vice President, Chief Financial Officer and Treasurer

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

KIMCO REALTY CORPORATION,

NEW KRC CORP.

and

KRC MERGER SUB CORP.

Dated as of December 15, 2022

AGREEMENT AND PLAN OF MERGER

This MERGER AGREEMENT AND PLAN OF REORGANIZATION (this “Agreement”) is entered into as of December 15, 2022 by and among Kimco Realty Corporation, a Maryland corporation (the “Company”), New KRC Corp., a Maryland corporation (“Holdco”), and KRC Merger Sub Corp., a Maryland corporation (“Merger Sub” and, together with the Company and Holdco, collectively the “Parties”).

BACKGROUND

WHEREAS, as of the date hereof, Holdco is a wholly-owned subsidiary of the Company, and Holdco also owns all of the issued and outstanding shares of common stock, par value $0.01 per share, of Merger Sub (“Merger Sub Common Stock”);

WHEREAS, the Parties intend to effect a reorganization pursuant to which Merger Sub will merge with and into the Company, with the Company being the surviving entity (the “Merger”). In connection with the Merger and at the Effective Time (as defined herein), (i) each share of common stock, $0.01 par value per share, each share of 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share, each share of 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Company, issued and outstanding prior to the Effective Time, and, while none are currently known to be outstanding, any shares of excess stock, $0.01 par value per share, and any share of excess preferred stock, $1.00 par value per share, of the Company, issued and outstanding immediately prior to the Effective Time, will be converted automatically into one corresponding share of common stock, $0.01 par value per share, 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share, 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share, excess stock, $0.01 par value per share, or excess preferred stock, $0.01 par value per share, of Holdco, as applicable, with the same terms, preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption as set forth in the charter of the Company, (ii) each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time will be converted automatically into one corresponding share of common stock, $0.01 par value per share, of the Company and (iii) each share of common stock, $0.01 par value per share, of Holdco, issued and outstanding immediately prior to the Effective Time, will be cancelled, in each case as more fully described herein;

WHEREAS, at the Effective Time, the Company will change its name as set forth herein, and, following the Effective Time, Holdco will change its name to “Kimco Realty Corporation” (i.e., the prior name of the Company);

WHEREAS, following the Effective Time, the Company intends to convert (the “Conversion”) from a Maryland corporation to a Delaware limited liability company to be named “Kimco Realty OP, LLC” (the “Converted Company”), pursuant to which all of the outstanding shares of common stock, $0.01 par value per share (the “Surviving Company Common Stock”), of the Company held by Holdco immediately after the Effective Time shall, without any further action on the part of the Company or Holdco, be converted into a limited liability company interest in the Converted Company representing a percentage interest in the Converted Company equal to the percentage that Holdco’s shares of Surviving Company Common Stock represented of all of the shares of Surviving Company Common Stock outstanding immediately before the Conversion. Upon the Conversion, Holdco will be the sole member and manager of the Company;

WHEREAS, the boards of directors of the Company, Holdco and Merger Sub, have unanimously approved the Merger. Pursuant to Section 3–106.2 of the Maryland General Corporation Law (the “MGCL”), the Merger does not require the approval of the stockholders of the Company; and

WHEREAS, it is intended that, for U.S. federal income tax purposes (and, where applicable, state and local tax purposes): the Merger shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and this Agreement shall constitute a “plan of reorganization” within the meaning of the Code and the Treasury regulations promulgated thereunder.

AGREEMENT

NOW THEREFORE, in consideration of the agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

ARTICLE 1

THE MERGER

Section 1.1 Merger. In accordance with the provisions of this Agreement, the Articles of Merger (as defined below) and the MGCL, at the Effective Time (as defined below), Merger Sub shall be merged with and into the Company, the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving entity under the laws of the State of Maryland.

Section 1.2 Effective Time and Execution. Subject to the terms and conditions of this Agreement, at a time of their choosing, the Parties shall cause the articles of merger pertaining to the Merger, substantially in the form of Exhibit A hereto (the “Articles of Merger”), to be filed with the State Department of Assessments and Taxation of Maryland in the manner provided under Maryland law. The Merger shall become effective at the effective time set forth in the Articles of Merger as filed with and accepted for record by the Maryland State Department of Assessments and Taxation (the “Effective Time”). The Company, as it will exist from and after the Effective Time, is herein sometimes referred to as the “Surviving Entity.”

Section 1.3 Name of Surviving Entity. The name of the Surviving Entity shall be amended in the Articles of Merger, so that following the Merger and prior to the Conversion shall be “KRC Interim Corp..”

Section 1.4 Effect of the Merger.

(a) The Merger shall, from and after the Effective Time, have the effects provided for in the MGCL.

(b) Without limitation of paragraph (a) above, at the Effective Time, (i) all of the rights, privileges, powers and franchises and all property (real, personal and mixed) of the Company shall automatically vest in the Surviving Entity, (ii) all debts, liabilities and duties of the Company shall automatically attach to and become the responsibility of the Surviving Entity, (iii) all company acts, plans, policies, contracts, approvals and authorizations of the Company that were valid and effective immediately prior to the Effective Time shall be taken for all purposes as the acts, plans, policies, contracts, approvals and authorizations of the Surviving Entity and shall be effective and binding on the Surviving Entity as the same were with respect to the Company, (iv) any action or proceeding, whether civil, criminal or administrative, pending by or against the Company may be prosecuted as if the Merger had not taken place or the Surviving Entity may be substituted for the Company in any such action or proceeding and (v) any employees of the Company at the Effective Time shall be employees of the Surviving Entity.

Section 1.5 Governing Documents. At the Effective Time, the charter of the Company (the “Charter”) as in effect immediately prior to the Effective Time shall be the charter of the Surviving Entity, except that the Charter of the Surviving Entity shall be amended contemplated above. At the Effective Time, the bylaws of the Company as in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Entity.

Section 1.6 Officers and Directors. The persons serving as officers and directors of the Company immediately prior to the Effective Time shall be the officers and directors of the Surviving Entity until changed in accordance with the applicable organizational documents thereof.

Section 1.7 Effect of Capital Shares. At the Effective Time, by virtue of the Merger and without any action on the part of the Parties:

(a) Company Common Stock. Each share of common stock, par value $0.01 per share of the Company (“Company Common Stock”) issued and outstanding immediately prior to the Effective Time shall automatically convert, on a one-for-one basis, into one share of common stock, par value $0.01 per share, of Holdco (“Holdco Common Stock”).

(b) Company Class L Preferred Stock. Each share of 5.125% Class L Cumulative Redeemable, Preferred Stock, $1.00 par value per share of the Company issued and outstanding immediately prior to the Effective Time shall automatically convert, on a one-for-one basis, into one share of 5.125% Class L Cumulative Redeemable, Preferred Stock, $1.00 par value per share of Holdco.

(c) Company Series M Preferred Stock. Each share of 5.250% Class M Cumulative Redeemable, Preferred Stock, $1.00 par value per share of the Company issued and outstanding immediately prior to the Effective Time shall automatically convert, on a one-for-one basis, into one share of 5.250% Class M Cumulative Redeemable, Preferred Stock, $1.00 par value per share of Holdco.

(d) Company Excess Stock. Each share of excess stock, $0.01 par value per share of the Company, issued and outstanding immediately prior to the Effective Time, if any, shall automatically convert, on a one-for-one basis, into one share of excess stock, $0.01 par value per share of Holdco.

(e) Company Class L Excess Preferred Stock. Each share of Class L excess preferred stock, $1.00 par value per share, $1.00 par value per share of the Company, issued and outstanding immediately prior to the Effective Time, if any, shall automatically convert, on a one-for-one basis, into one share of Class L excess preferred stock, $1.00 par value per share, of Holdco.

(f) Company Class M Excess Preferred Stock. Each share of Class M excess preferred stock, $1.00 par value per share, $1.00 par value per share of the Company, issued and outstanding immediately prior to the Effective Time, if any, shall automatically convert, on a one-for-one basis, into one share of Class M excess preferred stock, $1.00 par value per share, of Holdco.

(g) Merger Sub Common Stock. All shares of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall automatically convert, on a one-for-one basis, into one share of common stock, par value $0.01 per share of the Surviving Entity.

(h) Holdco Common Stock. Each share of common stock, par value $0.01 per share, of Holdco issued and outstanding immediately prior to the Effective Time shall automatically be cancelled for no consideration and cease to be issued or outstanding.

Section 1.8 Dissenter’s Rights. In accordance with Section 3-202(c)(3) of the MGCL, no dissenter’s rights will be available to the Company’s stockholders in connection with the Merger.

Section 1.9 No Required Surrender of Share Certificates. As used herein, the term “Company Shares” refers collectively to the Company’s shares of common stock, par value $.01 per share, and shares of preferred stock, par value $1.00 per share.

(a) At and after the Effective Time: (i) where no physical certificate representing the Company Shares has been issued in the name of a holder thereof, a “book-entry” (i.e., a computerized or manual entry) shall be made in the share records of Holdco to evidence the issuance to such holder of the number of uncertificated shares of Holdco into which such Company Shares have been converted pursuant to Section 1.7, and Holdco shall cause each stockholder holding Holdco shares in book entry form to be provided such information as shall be required by or necessary to comply with Maryland law; (ii) each certificate which, immediately prior to the Effective Time, represented outstanding Company Shares (each, a “Company Certificate”) shall be deemed for all purposes to evidence ownership of, and to represent, the number, class and series of Holdco shares into which the Company Shares represented by such Company Certificate immediately prior to the Effective Time have been converted pursuant to Section 1.7.

(b) The registered holder of any Company Certificate outstanding immediately prior to the Effective Time, as such holder appears in the books and records of the Company, or of the transfer agent in respect of the Company Shares, immediately prior to the Effective Time, shall, until such Company Certificate is surrendered for transfer or exchange, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends or other distributions on, the Holdco shares into which the Company Shares represented by any such Company Certificate have been converted pursuant to Section 1.7, subject to the provisions of Maryland law.

(c) Following the Effective Time, Holdco may, in its discretion, mail or cause to be mailed, to the persons who were registered holders of Company Certificates immediately prior to the Effective Time, a letter of transmittal, in customary form, containing instructions for use in effecting the surrender of such Company Certificates, if the holder so chooses, in exchange for a certificate (a “Holdco Certificate”), or, in Holdco’s discretion, uncertificated shares in book-entry form, representing the number, class and series of Holdco shares into which the Company Shares represented by such Company Certificate have been converted pursuant to Section 1.7.

(d) Each Holdco Certificate shall comply with all requirements set forth in Holdco’s charter or bylaws and applicable law with respect to notice of certain restrictions on ownership and transferability.

Section 1.10 Dividends. At the Effective Time and by operation of the Merger, the Company’s obligations with respect to any dividends or other distributions to the Company’s stockholders that have been declared by the Company, but not paid prior to the Effective Time, will be assumed by Holdco.

Section 1.11 Share Transfer Books. At the Effective Time, the share transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Company shares theretofore outstanding on the records of the Company.

Section 1.12 Plan of Reorganization and Plan of Exchange. This Agreement is intended to constitute a “plan of reorganization” within the meaning of Treasury Regulations Section 1.368-2(g). Each Party shall use commercially reasonable efforts to cause the Merger to qualify, and will not take any actions or cause any actions to be taken which would prevent the Merger from qualifying, as a reorganization within the meaning of Section 368(a) of the Code.

Section 1.13 Successor Issuer. It is the intent of the Parties that Holdco be deemed a “successor issuer” of the Company in accordance with Rule 12g-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) solely for purposes of the Exchange Act, and in accordance with Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”) solely for purposes of the Securities Act.

Section 1.14 Equity Awards; Equity Participation Plans; Executive Severance Plan

(a) Contingent upon the consummation of the Merger and effective immediately following the Effective Time:

(i) the Company will assign to Holdco, and Holdco will assume and continue, all of the Company’s equity incentive plans and agreements (the “Plans”), including but not limited to the Restated Kimco Realty Corporation 2010 Equity Participation Plan (as amended and/or restated, the “2010 Plan”) and the Kimco Realty Corporation 2020 Equity Participation Plan (as amended and/or restated, the “2020 Plan”) (and, for the avoidance of doubt, any limitations on the number of shares of Company Common Stock issuable thereunder shall continue to apply under the Plans with respect to an equal number of shares of Holdco Common Stock).

(ii) the outstanding and, as applicable, unexercised portions of all stock options, restricted shares, performance shares, deferred stock and other rights or awards outstanding under the Plans in respect of Company Common Stock will become stock options, restricted shares, performance shares, deferred stock and other rights or awards, as applicable, in respect of the same number of shares of Holdco Common Stock with no other changes in the terms and conditions of such stock options, restricted shares, performance shares, deferred stock or other rights or awards, including exercise prices and performance goals (provided that such performance goals shall, following the Effective Time, relate to Holdco).

(iii) the Company will assign to Holdco, and Holdco will assume, the outstanding and, as applicable, unexercised portions of such stock options, restricted shares, performance shares, deferred stock and other rights and awards under the Plans, and the interests and obligations of the Company with respect thereto.

(b) Immediately following the Effective Time, all references to the Company or to Company Common Stock in the Plans will be deemed to be automatically amended to be references to Holdco and to Holdco Common Stock, respectively, except where the context clearly dictates otherwise.

(c) Contingent upon the consummation of the Merger and effective immediately following the Effective Time, the Company will assign to Holdco, and Holdco will assume and continue, the Kimco Realty Corporation Executive Severance Plan (the “Severance Plan”), and all rights, interests and obligations of the Company with respect thereunder; provided, that, the entity that employs the applicable participant shall be responsible for any non-equity payments from the Severance Plan to the participant. Immediately following the Effective Time, all references to the Company or to Company Common Stock in the Severance Plan will be deemed to be automatically amended to be references to Holdco and to Holdco Common Stock, respectively, except where the context clearly dictates otherwise.

(d) The Company and Holdco agree that the transactions contemplated in this Agreement do not constitute a “Change in Control,” a “Change of Control,” or term of similar import under the Plans or the Severance Plan, as such term is defined therein.

(e) Immediately following the Effective Time, all references to Company Common Stock in the Kimco Realty Corporation 401(k) Plan will be deemed to be automatically amended to be references to Holdco Common Stock, respectively, except where the context clearly dictates otherwise.

(f) Subject to the terms of this Agreement, the Plans and Severance Plan, the Parties shall from time to time after the date hereof, without further consideration, execute, acknowledge, deliver and take such further acts, assignments, notices, transfers, conveyances, assumptions and assurances as may be reasonably required to carry out the intent of this Agreement, including, without limitation, preparing and making any required filings with the Securities and Exchange Commission.

ARTICLE 2

MISCELLANEOUS

Section 2.1 Descriptive Headings. Descriptive headings in this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.

Section 2.2 Counterparts. For the convenience of the Parties, this Agreement may be executed in one or more counterparts, each of which shall be considered an original, and all of which taken together shall constitute a single instrument.

Section 2.3 Successors and Assigns. This Agreement may not be assigned by a Party without the written consent of the other Parties. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the successors and assigns of the Parties.

Section 2.4 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 2.5 Applicable Law. This Agreement, and any controversy or proceeding arising hereunder or in connection herewith, whether sounding in contract or tort, and whether brought at law or in equity, shall be governed by, construed and enforced in accordance with the laws of the State of Maryland without regard to any conflict of laws principles.

Section 2.6 Amendment and Termination. This Agreement may be amended or supplemented in any manner and from time to time prior to the Effective Time by a written instrument duly executed and delivered by all of the Parties. This Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time by action taken by the boards of directors of the Parties. In the event of the termination and abandonment of this Agreement, this Agreement shall become void and have no effect, without any liability on the part of any Party or its directors, officers or stockholders.

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* * * * *

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed all as of the date first written above.

	KIMCO REALTY CORPORATION

	/s/ Glenn G. Cohen
	Name: Glenn G. Cohen
	Title: Executive Vice President, Chief Financial Officer and Treasurer

	NEW KRC CORP.

	/s/ Glenn G. Cohen
	Name: Glenn G. Cohen
	Title: Executive Vice President, Chief Financial Officer and Treasurer

	KRC MERGER SUB CORP.

	/s/ Glenn G. Cohen
	Name: Glenn G. Cohen
	Title: Executive Vice President, Chief Financial Officer and Treasurer

Exhibit 3.1

KIMCO REALTY CORPORATION

ARTICLES SUPPLEMENTARY

Kimco Realty Corporation, a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation that:

FIRST: Under a power contained in Article IV of the charter of the Corporation (the “Charter”), the Board of Directors, by duly adopted resolutions, reclassified and designated all of the authorized (but currently unissued) shares of (a) 6.000% Class I Cumulative Redeemable Preferred Stock, $1.00 par value per share (“Class I Preferred Stock”) and (b) 5.625% Class K Cumulative Redeemable Preferred Stock, $1.00 par value per share (“Class K Preferred Stock”), as shares of Preferred Stock, $1.00 par value per share, with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemption as set forth in the Charter.

SECOND: Under a power contained in Article IV of the Charter, the Board of Directors, by duly adopted resolutions, reclassified and designated all of the authorized (but currently unissued) shares of (a) Class F Excess Preferred Stock, $1.00 par value per share (“Class F Excess Preferred Stock”), (b) Class G Excess Preferred Stock, $1.00 par value per share (“Class G Excess Preferred Stock”), (c) Class H Excess Preferred Stock, $1.00 par value per share (“Class H Excess Preferred Stock”), (d) Class I Excess Preferred Stock, $1.00 par value per share (“Class I Excess Preferred Stock”), (e) Class J Excess Preferred Stock, $1.00 par value per share (“Class J Excess Preferred Stock”), and (f) Class K Excess Preferred Stock, $1.00 par value per share (“Class K Excess Preferred Stock”), as shares of Preferred Stock, $1.00 par value per share, with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemption as set forth in the Charter.

THIRD: The shares of Class I Preferred Stock, Class K Preferred Stock, Class F Excess Preferred Stock, Class G Excess Preferred Stock, Class H Excess Preferred Stock, Class I Excess Preferred Stock, Class J Excess Preferred Stock and Class K Excess Preferred Stock have been reclassified and designated by the Board of Directors under the authority contained in the Charter.

FOURTH: These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.

FIFTH: The undersigned Vice President of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned Vice President acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties of perjury.

IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed in its name and on its behalf by its Vice President and attested by its Assistant Secretary this 15th day of December, 2022.

ATTEST:	KIMCO REALTY CORPORATION

/s/ Kathleen M. Gazerro	By:	/s/ Harvey G. Weinreb
Kathleen M. Gazerro		Harvey G. Weinreb
Assistant Secretary		Vice President

Exhibit 99.1

Listed on the New York Stock Exchange (KIM)

NEWS RELEASE

Kimco Realty Corporation Announces Holding Company Reorganization

– UPREIT Structure Improves Ability to Acquire Properties in Tax-Deferred Structures –

JERICHO, New York, December 15, 2022 – Kimco Realty^® (NYSE: KIM) (the “Company”) today announced that it intends to complete a holding company reorganization (the “Reorganization”), which would restructure the Company as an Umbrella Partnership Real Estate Investment Trust, or UPREIT. As part of the Reorganization, a new holding company (“New Kimco”) will become the publicly traded parent company by way of an intercompany merger (the “Merger”), assuming the existing name of “Kimco Realty Corporation,” while the current corporation (“Old Kimco”) will convert to a limited liability company called “Kimco Realty OP, LLC” (“Kimco OP”) controlled by the publicly traded parent company (the “Conversion”).

“We are very excited to announce our reorganization into an UPREIT, which we believe will enhance our ability to compete in the acquisition of real estate assets by enabling us to offer tax-deferred opportunity to sellers,” said Conor Flynn, Kimco’s Chief Executive Officer. “We believe this reorganization will have no material impact on our existing shareholders, debt security holders, lenders or other constituencies, and will represent an enhanced platform for Kimco’s continued growth.”

The Reorganization is intended to align the Company’s corporate structure with other publicly traded U.S. real estate investment trusts and provide a platform for the Company to more efficiently acquire properties in a tax-deferred manner. The UPREIT structure will allow owners of appreciated property to contribute such property to an LLC structured as an “operating partnership” in exchange for membership interests therein. Subject to applicable tax requirements, this type of contribution may be done on a tax-deferred basis for the contributors. Following the Conversion, Kimco OP will function as the operating partnership in the UPREIT structure. Membership interests in Kimco OP will generally entitle their holders to receive the same distributions as holders of New Kimco common stock, and the holders of such interests will generally be entitled to exchange the membership interests for cash or common stock, at New Kimco’s option.

The Reorganization is not anticipated to have any material impact on the Company’s financial position and is not expected to result in any material changes to the Company’s combined financial statements, outstanding debt securities, material debt facilities, or business operations. All shares of common and preferred stock of Kimco will automatically be converted into identical shares of the new parent holding company as part of the Reorganization, and the Reorganization will not impact the payment of the dividends declared by the Company’s board of directors and payable to stockholders of record in accordance with previously announced dividend payment dates in respect of the Company’s common shares and the Class L preferred stock and Class M preferred stock.

The Reorganization does not require shareholder approval under Maryland law and the Merger is expected to qualify as a tax-free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended, meaning that Kimco’s shareholders are not expected to recognize a gain or loss for federal income tax purposes as a result of the Merger.

The Merger is expected to be effective as of January 1, 2023, and the Conversion is expected to be effective promptly thereafter. When the Reorganization is complete, the holding company will be named “Kimco Realty Corporation,” just as Kimco is today, and its shares of common stock, Class L depositary shares and Class M depositary shares are expected to continue to trade on the NYSE under the symbols “KIM,” “KIMprL” and “KIMprM”, respectively.

For more information on the Reorganization, please see the Form 8-K that is expected to be filed by the Company with the Securities and Exchange Commission on December 15, 2022. A set of FAQs is also available on the Company’s website at www.kimcorealty.com/UPREITfaq.

About Kimco Realty^®

Kimco Realty^® (NYSE:KIM) is a real estate investment trust (REIT) headquartered in Jericho, N.Y. that is North America’s largest publicly traded owner and operator of open-air, grocery-anchored shopping centers, including mixed-use assets. The company’s portfolio is primarily concentrated in the first-ring suburbs of the top major metropolitan markets, including those in high-barrier-to-entry coastal markets and rapidly expanding Sun Belt cities, with a tenant mix focused on essential, necessity-based goods and services that drive multiple shopping trips per week. Kimco Realty is also committed to leadership in environmental, social and governance (ESG) issues and is a recognized industry leader in these areas. Publicly traded on the NYSE since 1991, and included in the S&P 500 Index, the company has specialized in shopping center ownership, management, acquisitions, and value enhancing redevelopment activities for more than 60 years. As of September 30, 2022, the company owned interests in 526 U.S. shopping centers and mixed-use assets comprising 91 million square feet of gross leasable space. For further information, please visit www.kimcorealty.com.

The company announces material information to its investors using the company’s investor relations website (investors.kimcorealty.com), SEC filings, press releases, public conference calls, and webcasts. The company also uses social media to communicate with its investors and the public, and the information the company posts on social media may be deemed material information. Therefore, the company encourages investors, the media, and others interested in the company to review the information that it posts on the social media channels, including Facebook (www.facebook.com/kimcorealty), Twitter (www.twitter.com/kimcorealty) and LinkedIn (www.linkedin.com/company/kimco-realty-corporation). The list of social media channels that the company uses may be updated on its investor relations website from time to time.

Forward-Looking Statements

This press release may contain “forward-looking” statements as defined in the Private Securities Litigation Reform Act of 1995. When the Company uses words such as “may,” “will,” “intend,” “should,” “believe,” “expect,” “anticipate,” “project,” “estimate” or similar expressions that do not relate solely to historical matters, it is making forward-looking statements. Forward-looking statements, including, but not limited to, statements regarding the Company’s ability to complete the Reorganization, the impacts of the Reorganization on the Company’s financial condition, business operations, financial statements and outstanding securities and other indebtedness and the Company’s ability to realize the expected benefits of Reorganization, are not guarantees of future performance and involve risks and uncertainties that may cause the company’s actual results to differ materially from the Company’s expectations discussed in the forward-looking statements. This may be a result of various factors, including, but not limited to, those factors discussed in the Company’s reports filed from time to time with the SEC. Moreover, other risks and uncertainties of which the Company is not currently aware may also affect the forward-looking statements contained herein and may cause actual results and the timing of events to differ materially from those anticipated. The forward-looking statements made in this communication are made only as of the date hereof or as of the dates indicated in the forward-looking statements, even if they are subsequently made available by the Company on its website or otherwise. The Company undertakes no obligation to update or revise publicly any forward-looking statements, whether because of new information, future events or otherwise, or to update the reasons why actual results could differ from those projected in any forward-looking statements ###

CONTACT:

David F. Bujnicki

Senior Vice President, Investor Relations and Strategy

Kimco Realty Corporation

1-866-831-4297

dbujnicki@kimcorealty.com

Exhibit 99.2

Frequently Asked Questions About the Reorganization into an UPREIT Structure

December 2022

1.	What is Kimco doing?

Kimco intends to complete a holding company reorganization resulting in a new company becoming the publicly traded parent company (“New Kimco”). The current publicly traded company (“Old Kimco”) intends to merge with a subsidiary of New Kimco and to convert to a Delaware limited liability company (the “LLC Conversion”) called “Kimco Realty OP, LLC” (“Kimco OP”), which will be controlled by New Kimco. New Kimco (the publicly traded parent company) will change its name to “Kimco Realty Corporation”, and is expected to qualify as a real estate investment trust (“REIT”) for federal income tax purposes. Following these transactions, New Kimco’s equity will continue to trade on the New York Stock Exchange (“NYSE”) under the current trading symbols of Old Kimco’s equity.

2.	Where can I find detailed information?

Details of the anticipated reorganization can be found in the press release and the Current Report on Form 8-K filed with the Securities and Exchange Commission. We recommend that you review these documents to obtain a complete understanding of the reorganization.

3.	When will this happen?

The merger is expected to be effective on January 1, 2023, and the LLC Conversion is expected to be effective promptly thereafter.

4.	Does this impact my rights as a shareholder?

No. All of the voting rights and other terms of your shares will remain the same.

5.	Why is Kimco doing this?

The reorganization will result in restructuring Kimco as an Umbrella Partnership REIT (“UPREIT”). Kimco believes the UPREIT structure will improve the company’s ability to acquire properties in a tax-deferred manner and also align the company’s corporate structure with the majority of other REITs.

6.	What happens to my shares in Kimco?

As part of the reorganization, each issued and outstanding share of Old Kimco common stock, Class L Preferred Stock and Class M Preferred Stock immediately prior to the Effective Time will be converted automatically into one corresponding issued and outstanding share of New Kimco common stock, 5.125% Class L Cumulative Redeemable Preferred Stock of New Kimco and 5.25% Class M Cumulative Redeemable Preferred Stock of New Kimco, respectively. For example, if you own 100 shares of Old Kimco common stock today, you will own 100 shares of New Kimco common stock after the reorganization with all of the same rights and benefits. You do not have to do anything with your Kimco shares because of the reorganization.

7.	Will this impact dividend payments?

No, the reorganization will not impact the payment of dividends declared by the company’s board of directors and payable in respect of the company’s shares of common stock, Class L preferred stock and Class M preferred stock.

8.	Will my shares still be traded on the NYSE?

Yes. We do not expect any change to ticker symbols or trading for shares in New Kimco after the reorganization. We expect (i) all shares of common stock of New Kimco will be traded on the NYSE under the ticker symbol “KIM”, (ii) all depositary shares, each representing one-thousandth of a share of 5.125% Class L Cumulative Redeemable Preferred Stock of New Kimco, will be traded on the NYSE under the ticker symbol “KIMprL” and (iii) all depositary shares, each representing one-thousandth of a share of 5.25% Class M Cumulative Redeemable Preferred Stock of New Kimco, will be traded on the NYSE under the ticker symbol “KIMprM.”

9.	Will this reorganization impact my US taxes?

No. The reorganization is expected to qualify as a tax-free reorganization for federal income tax purposes, meaning that Kimco’s shareholders are not expected to recognize gain or loss for federal income tax purposes.

10.	What will be the name of the new public company?

After completion of the reorganization, the new public company will be known as Kimco Realty Corporation. The current publicly traded company (i.e., Old Kimco) will become a limited liability company named Kimco Realty OP, LLC, and will be the operating partnership in the UPREIT structure.

11.	Who will be running New Kimco?

The Board of Directors of New Kimco will be exactly the same as the current Board of Directors of Old Kimco that the shareholders elected in March 2022. The management team of New Kimco will also be unchanged from the management team of Old Kimco today. It will still be headed by Conor Flynn as Chief Executive Officer with his current management team and employees.

12.	Will the reorganization have an impact on Kimco’s financial condition?

No. Other than costs necessary to effectuate the reorganization which we do not expect to be material, we do not expect the reorganization to have any adverse impact on the consolidated financial statements, cash flow, or results of operation of Kimco, or on its outstanding debt securities.

13.	Will there be any changes to the assets owned by Kimco?

No. Substantially all of the assets owned by Old Kimco and its subsidiaries today will continue to be owned by Kimco OP and its subsidiaries immediately after the reorganization. New Kimco generally will not hold any assets directly other than certain assets that may be held for certain administrative functions and its interest in Kimco Realty OP, LLC. In addition, all material indebtedness of Old Kimco immediately prior to the reorganization is expected to be indebtedness of Kimco OP after the reorganization.

14.	What if I still have questions about the reorganization?

If you have questions about the reorganization that have not been answered, please contact our Investor Relations department at IR@kimcorealty.com.

Forward-Looking Statement

This FAQ may contain “forward-looking” statements as defined in the Private Securities Litigation Reform Act of 1995. When Kimco uses words such as “may,” “will,” “intend,” “should,” “believe,” “expect,” “anticipate,” “project,” “estimate” or similar expressions that do not relate solely to historical matters, it is making forward-looking statements. Forward-looking statements, including, but not limited to, statements regarding Kimco’s ability to complete the reorganization, the impacts of the reorganization on Kimco’s financial condition, business operations, financial statements, outstanding securities, material indebtedness and Kimco’s ability to realize the expected benefits of reorganization, are not guarantees of future performance and involve risks and uncertainties that may cause Kimco’s actual results to differ materially from Kimco’s expectations discussed in the forward-looking statements. This may be a result of various factors, including, but not limited to, those factors discussed in Kimco’s reports filed from time to time with the Securities Exchange Commission. Moreover, other risks and uncertainties of which Kimco is not currently aware may also affect the forward-looking statements contained herein and may cause actual results and the timing of events to differ materially from those anticipated. The forward-looking statements made in this communication are made only as of the date hereof or as of the dates indicated in the forward-looking statements, even if they are subsequently made available by Kimco on its website or otherwise. Kimco undertakes no obligation to update or revise publicly any forward-looking statements, whether because of new information, future events or otherwise, or to update the reasons why actual results could differ from those projected in any forward-looking statements.