•

a proposal to approve the merger (which we refer to as the “Merger”) of Weingarten Realty Investors, a Texas real estate investment trust (which we refer to as “WRI”), with and into Kimco, with Kimco continuing as the surviving corporation of the Merger, on the terms and subject to the conditions of the agreement and plan of merger, dated as of April 15, 2021 (which we refer to, as it may be amended or supplemented from time to time, as the “Merger Agreement”), by and between WRI and Kimco, as more fully described in the attached joint proxy statement/prospectus (which we refer to as the “Kimco Merger Proposal”); and

•

a proposal to approve the adjournment of the Kimco special meeting, if necessary or appropriate, to solicit additional proxies in favor of the Kimco Merger Proposal if there are insufficient votes at the time of such adjournment to approve such proposal (which we refer to as the “Kimco Adjournment Proposal”).

•

a proposal to approve the agreement and plan of merger, dated as of April 15, 2021 (which we refer to, as it may be amended or supplemented from time to time, as the “Merger Agreement”), by and between WRI and Kimco Realty Corporation, a Maryland corporation (which we refer to as “Kimco”), pursuant to which WRI will merge with and into Kimco (which we refer to as the “Merger”), with Kimco continuing as the surviving corporation of the Merger, as more fully described in the attached joint proxy statement/prospectus (which we refer to as the “WRI Merger Proposal”);

•

a proposal to approve, by advisory (nonbinding) vote, the compensation that may be paid or become payable to the named executive officers of WRI in connection with the Merger (which we refer to as the “WRI Compensation Proposal”); and

•

a proposal to approve the adjournment of the WRI special meeting, if necessary or appropriate, to solicit additional proxies in favor of the WRI Merger Proposal, if there are insufficient votes at the time of such adjournment to approve such proposal (which we refer to as the “WRI Adjournment Proposal”).

Q:

What is the Merger?

A:

Kimco and WRI have agreed to a business combination under the terms of the Merger Agreement, pursuant to which WRI will merge with and into Kimco (which we refer to as the “Merger”), with Kimco continuing as the surviving corporation of the Merger. A copy of the Merger Agreement is attached as Annex A to this joint proxy statement/prospectus.

Q:

What happens if the market price of shares of Kimco common stock or WRI common shares changes before the closing of the Merger?

A:

No change will be made to the Merger consideration if the market price of shares of Kimco common stock or WRI common shares changes before the Merger. Because the Merger consideration is fixed, other than customary anti-dilution adjustments in the event of certain changes in Kimco’s capitalization and in certain circumstances relating to a special distribution by WRI, the value of the consideration to be received by WRI shareholders in the Merger will depend on the market price of shares of Kimco common stock at the time of the Merger.

Q:

Why am I receiving this joint proxy statement/prospectus?

A:

The Merger cannot be completed, unless:

•

the holders of Kimco common stock vote to approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement (which we refer to as the “Kimco Merger Proposal”); and

•

the holders of WRI common shares vote to approve the Merger Agreement (which we refer to as the “WRI Merger Proposal”).

Q:

Why is Kimco proposing the Merger?

A:

Among other reasons, the Kimco board of directors unanimously approved the Merger Agreement and the Merger and recommended the approval of the Kimco Merger Proposal based on a number of strategic and financial benefits to Kimco. For more information, see “The Merger—Kimco’s Reasons for the Merger; Recommendations of the Kimco Board of Directors.”

Q:

Why is WRI proposing the Merger?

A:

Among other reasons, the WRI board of trust managers unanimously approved the Merger Agreement and the Merger and recommended approval of the WRI Merger Proposal based on a number of strategic and financial benefits. For more information, see “The Merger—WRI’s Reasons for the Merger; Recommendations of the WRI Board of Trust Managers.”

Q:

When and where will the special meetings be held?

A:

The Kimco special meeting will be held virtually on August 3, 2021, at www.virtualshareholdermeeting.com/KIM2021SM, at 10:00 a.m. local time. The WRI special meeting will be held on August 3, 2021, at 2600 Citadel Plaza Drive, Houston, Texas 77008, at 9:00 a.m. local time.

Q:

How do I vote?

A:

Kimco. If you are a holder of record of Kimco common stock as of the record date for the Kimco special meeting, you may vote by:

•

accessing the Internet website specified on your proxy card;

•

calling the toll-free number specified on your proxy card;

•

signing and returning the enclosed proxy card in the postage-paid envelope provided; or

•

attending the Kimco special meeting.

•

By Written Proxy. All shareholders of record can vote by written proxy card. If you are a beneficial owner, you may request a written proxy card or a vote instruction form from your bank or broker.

•

By Telephone or Internet. All shareholders of record also can vote by touchtone telephone using the toll-free telephone number on the proxy card, or through the Internet, using the procedures and instruction described on the proxy card. Beneficial owners may vote by telephone or Internet if their bank or broker makes those methods available, in which case the bank or broker will include the instructions with the proxy materials. The telephone and Internet voting procedures are designed to authenticate shareholders’ identities, to allow shareholders to vote their shares and to confirm that their instructions have been recorded properly.

•

In Person. All shareholders of record may vote in person at the meeting. Beneficial owners may vote in person at the meeting if they have a legal proxy.

Q:

What am I being asked to vote upon?

A:

Kimco. Holders of Kimco common stock are being asked to vote to approve the Kimco Merger Proposal. Holders of Kimco common stock are also being asked to vote to approve a proposal to adjourn the Kimco special meeting, if necessary or appropriate, to solicit additional proxies in favor of the Kimco Merger Proposal if there are insufficient votes at the time of such adjournment to approve the Kimco Merger Proposal (which we refer to as the “Kimco Adjournment Proposal”).

Q:

What vote is required to approve each proposal?

A:

Kimco.

•

Approval of the Kimco Merger Proposal requires the affirmative vote of the holders of Kimco common stock entitled to cast a majority of all the votes entitled to be cast on the Kimco Merger Proposal at the Kimco special meeting.

•

Approval of the Kimco Adjournment Proposal requires the affirmative vote of the majority of the votes cast at the Kimco special meeting.

•

Approval of the WRI Merger Proposal requires the affirmative vote of the holders of two-thirds of the outstanding WRI common shares entitled to vote on the WRI Merger Proposal at the WRI special meeting.

•

Approval of the WRI Compensation Proposal requires the affirmative vote of the holders of the majority of the WRI common shares entitled to vote, present in person or represented by proxy, at the WRI special meeting; however, such vote is advisory (nonbinding) only.

•

Approval of the WRI Adjournment Proposal requires the affirmative vote of the holders of the majority of the WRI common shares entitled to vote, present in person or represented by proxy, at the WRI special meeting.

Q:

How do the board of directors of Kimco and the board of trust managers of WRI recommend that I vote?

A:

Kimco. The Kimco board of directors unanimously recommends that holders of Kimco common stock vote “FOR” the Kimco Merger Proposal and “FOR” the Kimco Adjournment Proposal.

Q:

How many votes do I have?

A:

Kimco. You are entitled to one vote for each share of Kimco common stock that you owned as of the close of business on the record date. As of the close of business on June 21, 2021, the record date for the Kimco special meeting, there were 433,515,776 outstanding shares of Kimco common stock, approximately 2.8% of which were beneficially owned by the directors and executive officers of Kimco.

Q:

What constitutes a quorum?

A:

Kimco. Stockholders who hold a majority of the Kimco common stock outstanding on the record date and who are entitled to vote must be present or represented by proxy to constitute a quorum at the Kimco special meeting.

Q:

If my shares of common stock are held in “street name” by my broker, will my broker vote my shares for me?

A:

If you hold your shares in a stock brokerage account or if your shares are held by a bank or nominee (that is, in “street name”), you must provide the record holder of your shares with instructions on how to vote your shares. Please follow the voting instructions provided by your broker, bank or nominee. Please note that you may not vote shares held in street name by returning a proxy card directly to Kimco or WRI or by voting at either special meeting unless you provide a “legal proxy,” which you must obtain from your broker, bank or nominee. Further, brokers who hold shares of Kimco common stock or WRI common shares on behalf of their customers may not give a proxy to Kimco or WRI to vote those shares without specific instructions from their customers.

Q:

What will happen if I fail to vote or fail to instruct my broker, bank or nominee how to vote?

A:

Kimco. If you are a Kimco stockholder and you do not vote or instruct your broker, bank or nominee on how to vote your shares of Kimco common stock, your broker may not vote your shares on the Kimco Merger Proposal or the Kimco Adjournment Proposal and your shares will not be deemed to be represented at the Kimco special meeting. This will have the same effect as a vote against the Kimco Merger Proposal, but it will have no effect on the Kimco Adjournment Proposal.

Q:

What will happen if I abstain from voting?

A:

Kimco. If you are a Kimco stockholder and abstain from voting, it will have the same effect as a vote against the Kimco Merger Proposal, but it will have no effect on the Kimco Adjournment Proposal.

Q:

What if I return my proxy card without indicating how to vote?

A:

If you sign and return your proxy card without indicating how to vote on any particular proposal, your shares of Kimco common stock or WRI common shares will be voted in accordance with the recommendation of the Kimco board of directors or WRI board of trust managers, as applicable, with respect to such proposal.

Q:

Can I change my vote after I have returned a proxy or voting instruction card?

A:

Yes. You can change your vote at any time before your proxy is voted at your special meeting. You can do this in one of three ways:

•

you can send a signed notice of revocation;

•

you can grant a new, valid proxy bearing a later date; or

•

if you are a holder of record, you can attend the Kimco special meeting or the WRI special meeting, as applicable, and vote at the special meeting, which will automatically cancel any proxy previously given, or you may revoke your proxy at the special meeting, but your attendance alone will not revoke any proxy that you have previously given.

Q:

What are the material U.S. federal income tax consequences of the Merger to U.S. holders of WRI common shares?

A:

The Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, which we refer to as the “Code,” and it is a condition to the respective obligations of WRI and Kimco to complete the Merger that each of WRI and Kimco receives a legal opinion to the effect that the Merger will so qualify. Provided the Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code, a U.S. holder of WRI common shares generally will recognize gain, but not loss, in an amount equal to the lesser of (1) the amount of gain realized (i.e., the excess of the sum of the amount of cash and the fair market value of the Kimco common stock received pursuant to the Merger over that holder’s adjusted tax basis in its WRI common shares surrendered) and (2) the amount of cash received pursuant to the Merger. Further, a U.S. holder of WRI common shares generally will recognize gain or loss with respect to cash received instead of fractional shares of Kimco common stock that the WRI common shareholder would otherwise be entitled to receive. For further information, please refer to “Material U.S. Federal Income Tax Consequences of the Merger.”

Q:

Are there any conditions to closing of the Merger that must be satisfied for the Merger to be completed?

A:

Yes. In addition to the approval of the Kimco Merger Proposal and WRI Merger Proposal, there are a number of conditions that must be satisfied or waived for the Merger to be consummated. For more information, see “The Merger—The Merger Agreement—Conditions to Completion of the Merger.”

Q:

When do you expect the Merger to be completed?

A:

Kimco and WRI are working to complete the Merger during the second half of 2021. However, the Merger is subject to various conditions, and it is possible that factors outside the control of Kimco and WRI could result in the Merger being completed at a later time, or not at all. There may be a substantial amount of time between the respective Kimco special meeting and WRI special meeting and the completion of the Merger. Kimco and WRI hope to complete the Merger as soon as reasonably practicable following the satisfaction of all applicable conditions.

Q:

Are WRI shareholders and Kimco stockholders entitled to appraisal or dissenters’ rights in connection with the Merger?

A:

Holders of Kimco common stock will not be entitled to appraisal rights or dissenters’ rights in the Merger under Section 3-202 of the Maryland General Corporation Law (which we refer to as the “MGCL”) because Kimco common stock is listed on a national securities exchange.

Q:

What do I need to do now?

A:

Carefully read and consider the information contained in and incorporated by reference into this joint proxy statement/prospectus, including its annexes.

•

you can attend the applicable special meeting;

•

you can vote through the Internet or by telephone by following the instructions included on your proxy card; or

•

you can indicate on the enclosed proxy or voting instruction card how you would like to vote and return the card in the accompanying postage-paid envelope.

Q:

Do I need to do anything with my share certificates now?

A:

WRI. No. You should not submit your share certificates at this time. After the Merger is completed, if you held certificates representing WRI common shares immediately prior to the effective time of the Merger, Equiniti Trust Company, the exchange agent for Kimco (which we refer to as the “exchange agent”), will send you a letter of transmittal and instructions for exchanging your WRI common shares for the Merger consideration. Upon surrender of the certificates for cancellation along with the executed letter of transmittal and other required documents described in the instructions, a holder of WRI common shares will receive the Merger consideration.

Q:

What should I do if I have technical difficulties or trouble accessing the Kimco special meeting website?

A:

If you encounter any difficulties accessing the Kimco special meeting, please call the technical support number that will be posted on the Kimco special meeting website.

Q:

Who can help answer my questions?

A:

Kimco stockholders or WRI shareholders who have questions about the Merger or the other matters to be voted on at the special meetings or who desire additional copies of this joint proxy statement/prospectus or additional proxy or voting instruction cards should contact:

•

receipt of the requisite approvals of Kimco stockholders and WRI shareholders;

•

the approval for listing on the NYSE of shares of Kimco common stock to be issued in connection with the Merger, subject to official notice of issuance;

•

the SEC having declared effective the registration statement of which this joint proxy statement/prospectus forms a part, and the absence of any stop order or proceedings seeking a stop order;

•

the absence of any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger;

•

the absence of any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any governmental entity of competent jurisdiction which makes the consummation of the Merger illegal;

•

the accuracy of all representations and warranties made by the parties to the Merger Agreement (subject in most cases to materiality or material adverse effect qualifications) and performance by the parties of their obligations under the Merger Agreement in all material respects, and receipt of an officer’s certificate from each party attesting thereto;

•

receipt by each of Kimco and WRI of an opinion to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code; and

•

the receipt by each of Kimco and WRI of an opinion regarding the other party’s qualification as a REIT.

•

changes in the respective businesses, operations, assets, liabilities and prospects of either company;

•

changes in market assessments of the business, operations, financial position and prospects of either company;

•

market assessments of the likelihood that the Merger will be completed;

•

interest rates, general market and economic conditions and other factors, including those generally affecting the price of Kimco common stock and WRI common shares;

•

federal, state and local legislation, governmental regulation and legal developments in the businesses in which Kimco and WRI operate;

•

dividends paid by Kimco or WRI; and

•

other factors, including those described under this heading “Risk Factors.”

•

if the price of Kimco common stock increases between the date the Merger Agreement was signed or the date of the WRI special meeting and the closing of the Merger, WRI shareholders will receive shares of Kimco common stock that have a market value upon completion of the Merger that is greater than the market value of such shares calculated pursuant to the exchange ratio on the date the Merger Agreement was signed or on the date of the Kimco special meeting, respectively; and

•

if the price of Kimco common stock declines between the date the Merger Agreement was signed or the date of the WRI special meeting and the closing of the Merger, including for any of the reasons described above, WRI shareholders will receive shares of Kimco common stock that have a market value upon completion of the Merger that is less than the market value of such shares calculated pursuant to the exchange ratio on the date the Merger Agreement was signed or on the date of the WRI special meeting, respectively.

•

WRI being required, under certain circumstances, to pay Kimco a termination fee of $115 million in connection with the Merger;

•

each of Kimco and WRI having to pay substantial costs relating to the Merger, such as legal, accounting, financial advisor, filing, printing and mailing fees and integration costs that have already been incurred or will continue to be incurred until the closing of the Merger;

•

the management of each of Kimco and WRI focusing on the Merger instead of pursuing other opportunities that could be beneficial to the companies, in each case, without realizing any of the benefits of having the Merger completed; and

•

reputational harm due to the adverse perception of any failure to successfully complete the Merger.

•

requiring Kimco to use a substantial portion of its cash flow from operations to service its indebtedness, which would reduce the available cash flow to fund working capital, capital expenditures, development projects, and other general corporate purposes and reduce cash for distributions;

•

limiting Kimco’s ability to obtain additional financing to fund its working capital needs, acquisitions, capital expenditures, or other debt service requirements or for other purposes;

•

increasing Kimco’s costs of incurring additional debt;

•

increasing Kimco’s exposure to floating interest rates;

•

limiting Kimco’s ability to compete with other companies that are not as highly leveraged, as Kimco may be less capable of responding to adverse economic and industry conditions;

•

restricting Kimco from making strategic acquisitions, developing properties, or exploiting business opportunities;

•

restricting the way in which Kimco conducts its business because of financial and operating covenants in the agreements governing Kimco’s existing and future indebtedness;

•

exposing Kimco to potential events of default (if not cured or waived) under covenants contained in its debt instruments that could have a material adverse effect on Kimco’s business, financial condition, and operating results;

•

increasing Kimco’s vulnerability to a downturn in general economic conditions; and

•

limiting Kimco’s ability to react to changing market conditions in its industry.

•

the inability to successfully combine the businesses of Kimco and WRI in a manner that permits Kimco to achieve the cost savings anticipated to result from the Merger, which would result in some anticipated benefits of the Merger not being realized in the time frame currently anticipated, or at all;

•

the inability to successfully realize the anticipated value from some of WRI’s assets, particularly from the redevelopment projects;

•

lost sales and tenants as a result of certain tenants of either of Kimco or WRI deciding not to continue to do business with the combined company;

•

the complexities associated with integrating personnel from the two companies;

•

the additional complexities of combining two companies with different histories, cultures, markets, strategies and customer bases;

•

the failure by Kimco to retain key employees;

•

potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the Merger; and

•

performance shortfalls at one or both of the two companies as a result of the diversion of management’s attention caused by completing the Merger and integrating the companies’ operations.

•

a greater number of shares of Kimco common stock outstanding, as compared to the number of shares of Kimco common stock currently outstanding;

•

different stockholders in Kimco; and

•

Kimco owning different assets and maintaining different capitalizations.

•

Kimco may not have enough cash to pay such dividends due to changes in Kimco’s cash requirements, capital spending plans, cash flow or financial position;

•

decisions on whether, when and in what amounts to pay any future dividends will remain at all times entirely at the discretion of the Kimco board of directors, which reserves the right to change Kimco’s dividend practices at any time and for any reason; and

•

the amount of dividends that Kimco’s subsidiaries may distribute to Kimco may be subject to restrictions imposed by state law and restrictions imposed by the terms of any current or future indebtedness that these subsidiaries may incur.

•

risks associated with the ability to consummate the Merger;

•

risks associated with the fixed exchange ratio;

•

risks associated with the dilution of Kimco stockholders and WRI shareholders in the Merger;

•

risks associated with provisions in the Merger Agreement that could discourage a potential competing acquirer of WRI;

•

risks associated with the pendency of the Merger adversely affecting the business of Kimco and WRI;

•

risks associated with the different interests in the Merger of certain directors and executive officers of Kimco and WRI;

•

risks associated with the ability of Kimco and WRI to terminate the Merger under certain circumstances, including if the Merger is not consummated by an outside date;

•

risks associated with the failure of the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code;

•

risks relating to the incurrence of substantial expenses in the Merger;

•

risks relating to the failure to integrate the businesses of Kimco and WRI;

•

risks relating to the ability of Kimco to effectively manage its expanded operations following the Merger;

•

risks relating to the trading price of Kimco common stock following the Merger;

•

risks relating to termination rights granted to counterparties pursuant to certain agreements of Kimco and WRI;

•

risks relating to certain other contractual rights of counterparties to agreements with Kimco or WRI;

•

risks relating to the failure of Kimco or WRI to qualify as a REIT;

•

risks relating to the complex organizational and operational requirements of REITs;

•

risks relating to a difference in rights of stockholders of Kimco and shareholders of WRI;

•

risks relating to the ability of Kimco to pay dividends following the Merger;

•

risks relating to Kimco’s indebtedness after the Merger;

•

risks relating to the use of pro forma financial information; and

•

those additional risks and factors discussed in reports filed with the Securities and Exchange Commission (which we refer to as the “SEC”) by Kimco and WRI from time to time, including those discussed under the heading “Risk Factors” in their respective most recently filed reports on Forms 10-K.

•

its belief that the strategic and transformative nature of the Merger will result in Kimco becoming the preeminent open-air shopping center and mixed-use real estate owner in the United States;

•

its expectation that, following the Merger, Kimco will have a national operating portfolio of approximately 559 open-air grocery-anchored shopping centers and mixed-use assets comprising approximately 100 million square feet of gross leasable area, primarily concentrated in the top major metropolitan markets in the United States;

•

its views on macroeconomic and industry trends, including a potential trend towards consolidation in the Sun Belt open-air shopping center and mixed-use real estate market to develop larger and more diverse companies with expanded portfolios, greater tenant diversity and geographic reach and enhanced access to capital markets;

•

its expectation that the transaction will grow Kimco’s presence in strategic Sun Belt markets with positive demographic and migration trends along with strong growth prospects;

•

its expectation that the transaction will result in greater tenant diversity, with the top 10 tenant brands of the combined portfolio expected to comprise approximately 19.3% of total annual base rent, with no single tenant representing more than approximately 4%;

•

its expectation that the combination of Kimco and WRI presents compelling growth opportunities, including by combining WRI’s largely funded and de-risked development pipeline with Kimco’s significant redevelopment projects and entitlements embedded in its existing portfolio;

•

its expectation that the combination of Kimco and WRI will provide improved efficiencies, including substantial synergy opportunities, given the 85% geographic overlap between the two companies in major metropolitan areas based on annual base rent;

•

its expectation that, following the Merger, Kimco will achieve increased scale, reduced leverage, improved liquidity and expanded access to capital, and will be better positioned to absorb market cycles;

•

its expectation that, upon completion of the Merger, legacy Kimco common stockholders will own approximately 71% of the Kimco common stock;

•

its belief that the businesses of Kimco and WRI are highly complementary and that the integration of the two companies will be completed in a timely and efficient manner with minimal disruption to tenants and other stakeholders;

•

its expectation that the Merger will be immediately accretive to earnings metrics and will result in annualized cost synergies of approximately $35 to $38 million on a GAAP basis (excluding accounting adjustments) and $31 to $34 million on a cash basis, which are expected to be substantially realized in the first full fiscal year post completion of the transaction;

•

that, pursuant to the mutual agreement of Kimco and WRI, following the Merger, the Kimco board of directors is expected to have eight members, consisting of the existing members of the Kimco board of directors;

•

the Merger Agreement’s provisions requiring WRI to pay Kimco a termination fee of $115 million if the Merger Agreement is terminated under certain circumstances. For more information, see “—The Merger Agreement—Termination of the Merger Agreement” and “—The Merger Agreement—No Solicitation”;

•

the historical and then-current trading prices and volumes of each of Kimco common stock and WRI common shares;

•

the fact that the Merger consideration under the Merger Agreement is fixed (i.e., it will not be adjusted for fluctuations in the market price of Kimco common stock or WRI common shares), creating certainty as to the number of shares of Kimco common stock to be issued and cash consideration to be paid;

•

that each of Andrew M. Alexander and Stanford J. Alexander, who collectively beneficially own approximately 5.4% of the outstanding WRI common shares would enter into voting agreements that would provide, subject to the terms and conditions thereof, for each of Messrs. A. Alexander and S. Alexander, solely in his capacity as a shareholder of WRI, to vote the WRI common shares he owns in favor of the Merger Agreement and against any alternative acquisition proposal;

•

the written opinions of each of Barclays and Lazard delivered to the Kimco board of directors to the effect that, as of April 14, 2021 and based upon and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review

•

the other terms and conditions of the Merger Agreement.

•

the risk of not capturing all of the anticipated estimated annualized cost synergies and the risk that other anticipated benefits of the transactions might not be realized on the expected timeframe or at all;

•

the challenges of combining Kimco with WRI, including technical, operational, accounting and other challenges, and the risk of diverting management resources for an extended period of time to accomplish this combination;

•

the restrictions on the conduct of Kimco’s business during the period between execution of the Merger Agreement and the consummation of the Merger. For more information, see “—The Merger Agreement—Conduct of Business Pending the Merger”;

•

the fact that projections of future results of operations are necessarily estimates based on assumptions. For more information, see “—Certain Unaudited Prospective Financial Information”;

•

the possibility that the Merger may not be completed, or that completion may be unduly delayed, including for reasons beyond the control of Kimco or WRI;

•

the risk that the Kimco stockholders may fail to approve the Kimco Merger Proposal or that WRI shareholders may fail to approve the WRI Merger Proposal;

•

the potential that the fixed Merger consideration could result in Kimco delivering greater value to WRI shareholders than had been anticipated by Kimco stockholders should the value of Kimco common stock, relative to WRI common shares, increase disproportionately from the date of the Merger Agreement;

•

the substantial costs to be incurred in connection with the Merger, including the costs of integrating the businesses of Kimco and WRI and the transaction expenses arising from the Merger;

•

the ownership dilution to legacy Kimco stockholders as a result of the issuance of Kimco common stock pursuant to the Merger Agreement;

•

the Merger Agreement’s provisions preventing Kimco from changing its recommendation to the Kimco stockholders to approve the Kimco Merger Proposal;

•

the Merger Agreement’s provisions permitting WRI to terminate the Merger Agreement in order to enter into a superior proposal upon payment by WRI to Kimco of a termination fee of $115 million. For more information, see “—The Merger Agreement—Termination of the Merger Agreement”;

•

the risk that payment by WRI to Kimco of a termination fee of $115 million if the Merger Agreement is terminated under certain circumstances may not be sufficient to fully compensate Kimco for its losses in such circumstances. For more information, see “—The Merger Agreement—Termination of the Merger Agreement” and “—The Merger Agreement—No Solicitation”;

•

the risk that failure to complete the Merger could negatively affect the price of Kimco common stock and future business and financial results of Kimco; and

•

the potential risk of diverting management focus and resources from operational matters and other strategic opportunities while working to implement the Merger.

•

Strategic and Financial Considerations. The WRI board of trust managers believes that the Merger will provide a number of strategic and financial benefits that have the potential to create additional value for WRI shareholders, including the following:

•

the combination of WRI and Kimco is expected to result in the creation of the preeminent open-air shopping center and mixed-use real estate owner in the United States;

•

the combination of WRI and Kimco is expected to provide greater geographical diversity and diversity of high-quality tenants, thereby mitigating risk;

•

the combined company is expected to have a flexible and strong balance sheet, with the ability to pursue appropriate growth opportunities and the potential for improved credit ratings and a lower cost of debt capital;

•

the combination of WRI and Kimco is expected to generate corporate and operational cost savings;

•

the combination of WRI and Kimco is expected to result in improved liquidity for WRI shareholders as a result of the increased equity capitalization and more dispersed stockholder base of the combined company;

•

the Merger consideration provides an attractive valuation relative to WRI’s net asset value;

•

the combination of WRI’s development pipeline with Kimco’s redevelopment pipeline on a larger and more diversified operating base, together with the depth and experience of the Kimco management team, is expected to improve execution and mitigate risk; and

•

the transaction will combine the similar business models and asset mixes of WRI and Kimco while creating a best-in-class platform capable of delivering sustained growth and value creation.

•

Participation in Future Appreciation. The Merger consideration will be paid in part in shares of Kimco common stock, which will provide WRI shareholders with the opportunity to participate in the benefits of the Merger and any potential appreciation of Kimco common stock following the Merger;

•

Premium Over Share Trading Price. The value of shares of Kimco common stock that WRI shareholders will receive in the Merger, as adjusted by the Merger consideration, represents a premium of approximately 11%, based on the closing prices per share of WRI common shares and Kimco common stock on April 14, 2021 (the last trading day before the WRI board of trust managers approved the merger);

•

Fixed Exchange Ratio. The exchange ratio is fixed and will not fluctuate as a result of changes in the price of Kimco common stock or WRI common shares prior to the effective time of the Merger, which means that the market value of the Merger consideration could increase prior to the effective time of the Merger if the trading price of Kimco common stock increases;

•

Tax-Free Transaction. Kimco and WRI intend for the Merger to qualify as a tax-free reorganization for U.S. federal income tax purposes, and if the Merger so qualifies, then U.S. holders of WRI common shares generally will not recognize any gain or loss for U.S. federal income tax purposes upon the receipt of the Merger consideration, except with respect to the cash Merger consideration of $2.89 per WRI common share and any cash in lieu of fractional shares of Kimco common stock;

•

Superior Proposals. The WRI board of trust managers has the ability, under certain circumstances and subject to certain conditions specified in the Merger Agreement, to consider and respond to unsolicited bona fide acquisition proposals with respect to WRI and to engage in negotiations with persons making any such acquisition proposal and to terminate the Merger Agreement in order to enter into a superior proposal (as defined in “The Merger Agreement—No Solicitation”), subject to certain notice requirements and the requirement that WRI pays a $115 million termination fee to Kimco. The WRI board of trust managers evaluated, in consultation with WRI’s legal and financial advisors, the amount of termination fee payable by WRI in circumstances specified in the Merger Agreement, and determined that such fee is reasonable and would not unduly impede the ability of a third party to make a superior proposal;

•

Opinion and Analyses of J.P. Morgan. The April 14, 2021, oral opinion of J.P. Morgan delivered to the WRI board of trust managers, which was confirmed by delivery of a written opinion, dated April 14, 2021, to the effect that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the Merger consideration to be paid to WRI’s common shareholders in the Merger was fair, from a financial point of view, to such shareholders, as more fully described below in the section entitled “—Opinion of WRI’s Financial Advisor.” The full text of the written opinion of J.P. Morgan, dated April 14, 2021, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex E to this Joint Proxy Statement/Prospectus and is incorporated herein by reference;

•

Knowledge of Businesses. The WRI board of trust managers’ familiarity with the business, operations, financial condition, earnings and prospects of WRI and its knowledge regarding Kimco, including information obtained through WRI’s due diligence review of Kimco, as well as its knowledge of the current and prospective environment in which WRI and Kimco operate and related industry, economic and market conditions and trends;

•

Kimco Management Depth and Experience. The existing Kimco senior management team has extensive experience in real estate operations and a proven track record of successfully executing Kimco’s redevelopment plans;

•

Consulting Arrangement to Advise Kimco. The fact that the Chairman of the WRI board of trust managers will be engaged by Kimco to help to oversee the ongoing equity investment of WRI shareholders and providing an opportunity for the combined company to benefit from his insights and experience;

•

Equal Merger Consideration for All Shareholders. The fact that all WRI shareholders would receive the same per share Merger consideration;

•

Support from the Key Shareholders. In connection with the Merger Agreement, Andrew M. Alexander and Stanford J. Alexander would each enter into a voting agreement to vote the WRI common shares they own of record or beneficially in favor of the Merger; and

•

High Likelihood of Consummation. The WRI board of trust managers deems it highly likely that the Merger will be completed in a timely manner given the likelihood the approvals of Kimco stockholders and WRI shareholders would be obtained, the commitment of both parties to complete the Merger pursuant to their respective obligations under the Merger Agreement, the absence of any significant closing conditions under the Merger Agreement (other than the requisite stockholder and shareholder approvals) and the absence of any financing contingency.

•

the exchange ratio is fixed and will not fluctuate as a result of changes in the price of Kimco common stock or WRI common shares prior to the effective time of the Merger, which means that the market value of the Merger consideration could decrease prior to the effective time of the Merger if the trading price of Kimco common stock decreases;

•

the fact that WRI shareholders will not have the opportunity to continue participating in WRI’s potential upside as a standalone company, but rather will participate in WRI’s upside as a part of the combined company;

•

the possibility that the Merger or the other transactions contemplated by the Merger Agreement may not be completed, or that their completion may be delayed for reasons that are beyond the control of WRI or Kimco, including the failure of WRI shareholders or Kimco stockholders to approve the Merger, or the failure of WRI or Kimco to satisfy other requirements that are conditions to closing the Merger;

•

the risk that failure to complete the Merger could negatively affect the price of WRI common shares and/or the future business and financial results of WRI;

•

the potential diversion of management focus and resources from operational matters and other strategic opportunities and the risk of any loss or change in the relationship of WRI with its employees, tenants and other business relationships while the Merger is pending;

•

the risk of not realizing all of the anticipated strategic and financial benefits of the Merger within the expected time frame or at all and that WRI shareholders will be subject to future financial, business and operational risks associated with the combined company;

•

the substantial costs to be incurred in connection with the transaction, including the costs of integrating the businesses of WRI and Kimco, and the transaction expenses arising from the Merger;

•

the terms of the Merger Agreement placing certain limitations on the ability of WRI to initiate, solicit, propose or knowingly encourage any inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an acquisition proposal, or to provide any nonpublic information in connection with any inquiry, proposal or offer that would reasonably be expected to lead to an acquisition proposal (unless such third party has made an unsolicited bona fide written acquisition proposal that constitutes or is reasonably likely to result in a superior proposal and such third party enters into a confidentiality agreement with WRI having provisions that are no less favorable to WRI than those contained in the confidentiality agreement between WRI and Kimco);

•

the obligation to pay Kimco a termination fee of $115 million if the Merger Agreement is terminated under certain circumstances;

•

the restrictions on the conduct of WRI’s business between the date of the Merger Agreement and the effective time of the Merger; and

•

the other factors described in the section entitled “Risk Factors.”

•

reviewed and analyzed a draft of the Merger Agreement, dated as of April 14, 2021 and the specific terms of the Merger;

•

reviewed and analyzed publicly available information concerning Kimco and WRI that Barclays believed to be relevant to its analysis, including their respective Annual Reports on Form 10-K for the fiscal year ended December 31, 2020;

•

reviewed and analyzed financial and operating information with respect to the business, operations and prospects of Kimco furnished to Barclays by Kimco, including financial projections of Kimco prepared by management of Kimco, which financial projections are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “Kimco Projections”);

•

reviewed and analyzed financial and operating information with respect to the business, operations and prospects of WRI furnished to Barclays by Kimco, including financial projections of WRI prepared by management of WRI and approved for Barclays’ use by Kimco, which financial projections are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “WRI Projections”);

•

reviewed and analyzed the pro forma impact of the Merger on the future financial performance of the combined company, including cost savings, operating synergies and other strategic benefits expected by the management of Kimco to result from a combination of the businesses (which we refer to as the “Expected Synergies”);

•

reviewed and analyzed a trading history of the Kimco common stock and WRI common shares from December 31, 2018 to April 13, 2021 and a comparison of that trading history with those of other companies that Barclays deemed relevant;

•

reviewed and analyzed published estimates of independent research analysts with respect to the future financial performance and price targets of Kimco and WRI;

•

reviewed and analyzed a comparison of the historical financial results and present financial condition of Kimco and WRI with each other and with those of other companies that Barclays deemed relevant;

•

reviewed and analyzed a comparison of the financial terms of the Merger with the financial terms of certain other transactions that Barclays deemed relevant;

•

had discussions with the management of Kimco and WRI concerning their respective businesses, operations, assets, liabilities, financial condition and prospects; and

•

has undertaken such other studies, analyses and investigations as Barclays deemed appropriate.

•

Regency Centers Corporation

•

SITE Centers Corporation

•

Retail Properties of America, Inc.

•

Retail Opportunity Investments Corporation

•

Urban Edge Properties

•

Kite Realty Group Trust

•

WRI

•

Regency Centers Corporation

•

SITE Centers Corporation

•

Retail Properties of America, Inc.

•

Retail Opportunity Investments Corporation

•

Urban Edge Properties

•

Kite Realty Group Trust

•

Kimco

•

reviewed the financial terms and conditions of a draft, dated April 14, 2021 of the Merger Agreement;

•

reviewed certain publicly available historical business and financial information relating to WRI and Kimco;

•

reviewed various financial forecasts and other data prepared by WRI relating to the business of WRI, which are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “WRI Projections”), financial forecasts and other data prepared by Kimco relating to the business of Kimco, which are more fully described in “—Certain Unaudited Prospective Financial Information” (which we refer to as the “Kimco Projections”) and the projected cost savings, operating synergies and other strategic benefits, including the amount and timing thereof, anticipated by the management of Kimco to be realized from the Merger;

•

held discussions with members of the senior managements of WRI and Kimco with respect to the businesses and prospects of WRI and Kimco, respectively, and with members of the senior management of Kimco with respect to the projected cost savings, operating synergies and other strategic benefits, including the amount and timing thereof, anticipated by the management of Kimco to be realized from the Merger;

•

reviewed public information with respect to certain other companies in lines of business Lazard believed to be generally relevant in evaluating the businesses of WRI and Kimco, respectively;

•

reviewed the financial terms of certain business combinations involving companies in lines of business Lazard believed to be generally relevant in evaluating the businesses of WRI and Kimco, respectively;

•

reviewed historical stock prices and trading volumes of the WRI common shares and the Kimco common stock;

•

reviewed the potential pro forma financial impact of the Merger on Kimco based on the WRI Projections and the Kimco Projections and the projected cost savings, operating synergies and other strategic benefits, anticipated by the management of Kimco to be realized from the Merger; and

•

conducted such other financial studies, analyses and investigations as Lazard deemed appropriate.

•

Regency Centers Corporation

•

SITE Centers Corporation

•

Retail Properties of America, Inc.

•

Retail Opportunity Investments Corporation

•

Urban Edge Properties

•

Kite Realty Group Trust

•

WRI

•

Regency Centers Corporation

•

SITE Centers Corporation

•

Retail Properties of America, Inc.

•

Retail Opportunity Investments Corporation

•

Urban Edge Properties

•

Kite Realty Group Trust

•

Kimco

•

reviewed a draft dated April 14, 2021 of the Merger Agreement;

•

reviewed certain publicly available business and financial information concerning WRI and Kimco and the industries in which they operate;

•

compared the financial and operating performance of WRI and Kimco with publicly available information concerning certain other companies J.P. Morgan deemed relevant and reviewed the current and historical market prices of WRI common shares and Kimco common stock and certain publicly traded securities of such other companies;

•

reviewed certain internal financial analyses and forecasts prepared by the managements of WRI and Kimco relating to their respective businesses, as well as the estimated amount and timing of cost savings and related expenses and synergies expected to result from the Merger (the “Synergies”); and

•

performed such other financial studies and analyses and considered such other information as J.P. Morgan deemed appropriate for the purposes of its opinion.

•

Regency Centers Corporation

•

Brixmor Property Group Inc.

•

SITE Centers Corp.

•

Retail Properties of America, Inc.

•

Retail Opportunity Investments Corp.

•

Urban Edge Properties

•

Kite Realty Group Trust

•

WRI

•

Kimco

(1)

Cash NOI is a non-GAAP financial performance measure that represents cash income from real estate operations less property operating expenses (before interest expense and depreciation and amortization).

(2)

Funds From Operations (which we refer to as “FFO”) is a supplemental non-GAAP financial measure utilized to evaluate the operating performance of real estate companies. The National Association of Real Estate Investment Trusts (which we refer to as “NAREIT”) defines FFO as net income/(loss) available to Kimco’s common shareholders computed in accordance with GAAP, excluding (i) depreciation and amortization related to real estate, (ii) gains or losses from sales of certain real estate assets, (iii) gains and losses from change in control, (iv) impairment write-downs of certain real estate assets and investments in entities when the impairment directly attributable to decreases in the value of depreciable real estate held by the entity and (v) after adjustments for unconsolidated partnerships and joint ventures calculated to reflect FFO on the same basis. Kimco has the option and has elected to, exclude gains and losses on the sale of assets and impairments of assets incidental to its main business and to exclude mark-to-market changes in value on its equity securities in calculating FFO. FFO as adjusted is a supplemental non-GAAP financial measure that Kimco believes is more reflective of its core operating performance and provides investors and analysts an additional measure to compare Kimco’s performance across reporting periods on a consistent basis by excluding items that Kimco does not believe are indicative of its core operating performance. FFO as adjusted is generally calculated by Kimco as FFO excluding certain transactional income and expenses and non-operating impairments which management believes are not reflective of the results within Kimco’s operating real estate portfolio.

(3)

Unlevered cash flow is a non-GAAP financial performance measure that adjusts Cash NOI by adding management fee and investment income, subtracting general and administrative and corporate expenses, tenant improvements, leasing commissions and recurring capital expenditures, adjusting for the impact of acquisitions, dispositions, redevelopment, development and the monetization of structured investments, and incorporating changes in working capital and other adjustments.

(4)

Represents unlevered cash flow as defined above, excluding projected dividends from the Albertsons investment.

(1)

Cash NOI is a non-GAAP financial performance measure that represents cash income from real estate operations less property operating expenses (before interest expense and depreciation and amortization).

(2)

FFO is a supplemental non-GAAP financial measure utilized to evaluate the operating performance of real estate companies. NAREIT defines FFO as net income/(loss) available to WRI’s common shareholders computed in accordance with GAAP, excluding (i) depreciation and amortization related to real estate, (ii) gains or losses from sales of certain real estate assets, (iii) gains and losses from change in control, (iv) impairment write-downs of certain real estate assets and investments in entities when the impairment directly attributable to decreases in the value of depreciable real estate held by the entity and (v) after adjustments for unconsolidated partnerships and joint ventures calculated to reflect FFO on the same basis.

(3)

Unlevered cash flow is a non-GAAP financial performance measure that adjusts Cash NOI by subtracting general and administrative and corporate expenses, tenant improvements, broker fees and recurring capital expenditures, adjusting for the impact of acquisitions, dispositions, redevelopment and development, and incorporating changes in working capital and other adjustments.

•

the effective time will occur on August 31, 2021 (which is the assumed date solely for purposes of this golden parachute compensation disclosure);

•

each of WRI’s named executive officers will experience a qualifying termination under their severance and change in control agreements at such time;

•

each named executive officer’s base salary rate and annual target bonus remain unchanged from those in place as of March 1, 2021;

•

equity awards that were outstanding as of August 31, 2021, with any applicable performance goals deemed satisfied at the target level;

•

the per share assumed merger consideration of $30.32, which was the closing price of Kimco common stock on the NYSE on April 14, 2021, the last trading day before public announcement of the Merger; and

•

the deemed termination of each named executive officer’s employment by Kimco without “cause” in connection with the completion of the Merger.

(1)

As described above in “—Change of Control Agreements,” the cash severance payments payable to each of Messrs. A. Alexander, Hendrix and Richter under the severance and change in control agreements consist of (a) 2.99 times his annualized base salary as of the date an event constituting a change in control first occurs or, if greater, (b) 2.99 times his highest base salary in the five fiscal years preceding the first event constituting a change in control, plus, in either case, 2.99 times his targeted bonus for the fiscal year in which the first event constituting a change in control occurs.

(2)

As described above under “—Treatment of WRI Equity-Based Awards in the Merger,” the equity amounts consist of the “single-trigger” accelerated vesting of unvested WRI restricted share awards, with any applicable performance goals deemed satisfied at the target level. The amounts shown are based on the number of restricted share awards held by each named executive officer on January 31, 2021. The amounts shown do not attempt to forecast any grants or additional issuances, vesting events or forfeitures of equity-based awards following January 31, 2021, nor do they forecast any dividends or forfeitures of equity-based awards following the date of this proxy statement.

(3)

As described in the section entitled “—Change of Control Agreements,” the welfare benefits to the named executive officers consist of one year of employee benefits coverage substantially similar to what he received or was entitled to receive prior to the change in control. The amounts reflected in the column above reflect benefit rates in effect through December 31, 2020; therefore if benefits levels change between the date of this joint proxy statement/prospectus and the closing of the merger, such amounts will change.

(4)

As described in the section entitled “—Change of Control Agreements,” the change of control agreements with Messrs. Hendrix and Richter provide for payments to such named executive officers to compensate for any excise tax imposed by Section 4999 of the Code or any similar state or local taxes or any penalties or interest with respect to the tax. The amounts reflected in the column above reflect the estimated potential amount of such payments.

•

organization, standing and corporate power;

•

capital structure;

•

authority relative to execution and delivery of, and performance of obligations under, the Merger Agreement;

•

SEC filings, financial statements, internal controls and absence of undisclosed liabilities;

•

accuracy of information supplied or to be supplied in this joint proxy statement/prospectus and the registration statement of which it forms a part;

•

compliance with applicable laws;

•

legal proceedings;

•

tax matters, including qualification as a REIT;

•

material contracts;

•

benefit plans;

•

employee benefits and labor matters and compliance with the Employee Retirement Income Security Act of 1974, as amended;

•

absence of certain changes;

•

board approval of the Merger and exemption from anti-takeover statutes;

•

required stockholder approval;

•

real property;

•

compliance with environmental laws;

•

intellectual property;

•

permits and licenses;

•

insurance policies;

•

inapplicability of the Investment Company Act of 1940;

•

brokers’ and finders’ fees; and

•

receipt of fairness opinions.

•

any changes after April 15, 2021 in general United States or global economic conditions, in financial, debt, securities, capital or credit markets, including changes in interest rates, general business, labor or regulatory conditions or social or political conditions;

•

any changes after April 15, 2021 generally affecting the industry or industries in which such party operates or any of the markets or geographical areas in which such party or any of its subsidiaries operate;

•

any changes or proposed changes after April 15, 2021 in law or the interpretation thereof or GAAP or the interpretation thereof;

•

acts of war, armed hostility or terrorism (including cyber-terrorism or cyber-attacks), riots, demonstrations, public disorders, civil disobedience or any worsening thereof;

•

force majeure events, including storms, fires, floods, earthquakes, hurricanes, tornados or other acts of God, natural disasters or calamities;

•

any epidemic, pandemic or disease outbreak (including COVID-19) or worsening thereof, including commercially reasonably responses thereto (including the COVID-19 measures implemented by governmental entities);

•

any effect to the extent attributable to the negotiation, execution, announcement, pendency or performance of the Merger Agreement or the consummation of transactions contemplated thereby, including the impact thereof on relationships, contractual or otherwise, of such party or any of its subsidiaries with customers, suppliers, lenders, partners, employees or regulators (without limiting any representation or warranty by such party in respect of the consequences resulting from the Merger Agreement or the consummation of the transactions contemplated thereby);

•

any failure to meet any internal or published projections (whether published by such party or any analysts) or forecasts or estimates of revenues or earnings or results of operations for any period (it being understood and agreed that the facts and circumstances giving rise to any such failure that are not otherwise excluded from the definition of a material adverse effect may be taken into account in determining whether there has been a material adverse effect);

•

any change in the price or trading volume of any publicly traded securities (it being understood and agreed that the facts and circumstances giving rise to such change that are not otherwise excluded from the definition of a material adverse effect may be taken into account in determining whether there has been a material adverse effect);

•

any reduction in the credit rating of such party or its subsidiaries (it being understood and agreed that the facts and circumstances giving rise to such reduction that are not otherwise excluded from the definition of a material adverse effect may be taken into account in determining whether there has been a material adverse effect);

•

any bankruptcy, insolvency or reorganization of any tenant under any lease or the commencement of any bankruptcy, insolvency or reorganization proceeding with respect to any tenant under any lease;

•

acts required to be taken or not taken by such party or any of its subsidiaries under the terms of the Merger Agreement or taken or not taken at the written request of the other party;

•

with respect to WRI, any transaction related litigation brought against WRI or its subsidiaries, trust managers, directors, officers or employees (except if it has resulted in a non-appealable judicial determination definitively finding a breach of duty by the WRI board of trust managers) or, with respect to either party, any litigation alleging that the disclosure contained in this joint proxy statement/prospectus (whether filed in preliminary or definitive form) violates the federal securities laws (except if it has resulted in a non-appealable judicial determination definitively finding such a violation); and

•

with respect to WRI, the identity of Kimco or any of its affiliates or any communication by Kimco or any of its affiliates regarding plans, proposals, intentions or projections with respect to WRI, any of its subsidiaries, or their employees or business.

•

(i) in the case of Kimco, amend or waive any provision under any of the governing documents of Kimco, in a manner that would materially and adversely affect the holders of WRI common shares and (ii) in the case of WRI, amend or waive any provision under any of the governing documents of WRI or amend or waive any provision under any of the governing documents of any subsidiary of WRI in any material respect;

•

split, combine, subdivide or reclassify any shares of capital stock or other equity or voting interests of such party or any of its subsidiaries;

•

enter into any new material line of business;

•

declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of such party, or any of their respective subsidiaries, or other equity securities or ownership interests, other than (i) the declaration and payment of dividends, payable quarterly with declaration, record and payment dates consistent with past practice, at a rate not to exceed a quarterly rate, in the case of Kimco, of $0.17 per share of Kimco common stock and dividends in respect of its outstanding preferred stock pursuant to the terms of such preferred stock or, in the case of WRI, $0.23 per WRI common share with respect to the first quarterly dividend

•

issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of capital stock or other equity or voting interests of such party or those of a subsidiary of such party, any voting debt, any stock appreciation rights, stock options, restricted shares or other equity-based awards or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares or equity interests or voting debt, or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for, such shares or other equity interests or voting debt, or enter into any agreement with respect to any of the foregoing, other than (i) issuances of shares of Kimco common stock or WRI common shares, as applicable, upon the exercise or settlement of equity awards in accordance with the terms of the applicable equity plan and awards, (ii) issuances by a wholly owned subsidiary of equity to its parent company or to another wholly owned subsidiary or issuances of any directors’ qualifying shares in accordance with applicable law, (iii) in the case of Kimco, grants of Kimco equity awards made in the ordinary course of business consistent with past practice or otherwise required by any Kimco benefit plan and (iv) in the case of WRI, issuances of WRI common shares to any person that tenders any convertible partnership or joint venture units pursuant to the applicable organizational documents of such entity;

•

repurchase, redeem or otherwise acquire, or permit any subsidiary to redeem, purchase or otherwise acquire any shares of its capital stock or other equity interests or any securities convertible into or exercisable for any shares of its capital stock or other equity interests, except for (i) acquisitions of shares of common stock tendered by holders of equity awards in accordance with the terms of the applicable equity plan and awards as in effect on April 15, 2021 in order to satisfy obligations to pay the exercise price and/or tax withholding obligations with respect thereto, (ii) the creation of new wholly owned subsidiaries organized to conduct or continue activities otherwise permitted by the Merger Agreement, (iii) in the case of WRI, redemptions of limited partnership units pursuant to certain of WRI’s limited partnership and joint venture agreements as set forth in the Merger Agreement, (iv) in the case of Kimco, redemptions of Kimco joint venture or operating partnership interests pursuant to the organizational documents of such entities and (v) in the case of Kimco, pursuant to repurchase plans described in the Kimco SEC documents in the ordinary course of business;

•

adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, restructuring, recapitalization or reorganization, including any bankruptcy related action or reorganization other than transactions solely between or among wholly owned subsidiaries that would not prevent or materially impede, hinder or delay consummation of the Merger or result in any breach of any of certain tax representations of such party set forth in the Merger Agreement (without regard to any materiality or similar qualification);

•

vote to approve or otherwise consent to the taking of any action or fail to exercise any rights to veto or prevent, any action by any joint venture that would be prohibited by the Merger Agreement if such joint venture was a subsidiary;

•

change its methods of financial accounting or financial accounting policies, except as required by changes in GAAP (or any interpretation thereof) or in applicable law, by the SEC or the Financial Accounting Standards Board or any similar organization;

•

take any action, or fail to take any action, which would reasonably be expected to cause either party to fail to qualify as a REIT or any of its subsidiaries to cease to be treated as a partnership or disregarded entity for U.S. federal income tax purposes or as a qualified REIT subsidiary (which we refer to as a “QRS”), a taxable REIT subsidiary (which we refer to as a “TRS”) or a REIT under the applicable provisions of Section 856 of the Code, as the case may be, other than any redemption or purchase of interests in any subsidiary that causes such subsidiary to dissolve or become a disregarded entity for U.S. federal income tax purposes and that is effectuated in accordance with the organizational documents of such subsidiary as in effect prior to the date of the Merger Agreement;

•

take any action, knowingly fail to take any action, which action or failure to act could be reasonably expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;

•

make, change or rescind any material election relating to taxes, change a material method of tax accounting, amend any material tax return, settle or compromise any material federal, state, local or foreign income tax liability, audit, claim or assessment, enter into any material closing agreement related to taxes or surrender any right to claim any material refund of taxes, other than, in each case, as necessary or appropriate to (i) preserve such party’s qualification as a REIT under the Code, or (ii) preserve the status of any subsidiary of such party as a partnership or disregarded entity for U.S. federal income tax purposes or as a QRS, a TRS or a REIT under the applicable provisions of Section 856 of the Code; or

•

agree to, or make any commitment to, take, or authorize, any of the actions prohibited by any of the above.

•

form or enter into a material partnership or operating partnership, joint venture, strategic alliance or similar arrangement with a third party;

•

acquire, by merging or consolidating with, by purchasing an equity interest in or assets of or by forming a partnership or joint venture with, any person, or by any other manner, any real property, any material personal property, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets, other than, (i) intercompany reorganizations or consolidations that would not (A) prevent or materially impede, hinder or delay consummation of the Merger or (B) result in any breach of any of certain tax representations of WRI set forth in the Merger Agreement (without regard to any materiality or similar qualification), or (ii) the creation of new wholly owned subsidiaries organized to conduct or continue activities otherwise permitted by the Merger Agreement;

•

sell, pledge, assign, transfer, dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, or agree to any option that would require a sale or other transfer of, any property or assets, or voluntarily exercise any purchase or sale rights or rights of first offer, other than (i) pledges and encumbrances on WRI real property that are not material to WRI in the ordinary course of business and that would not be material to any WRI real property and do not secure indebtedness, (ii) any assets, other than real property, in the ordinary course of business consistent with past practice, (iii) transactions solely between or among wholly owned subsidiaries of WRI and (iv) sales required by purchase rights or options existing as April 15, 2021 and disclosed to Kimco;

•

incur, create, assume, refinance or replace any indebtedness or issue or amend or modify the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the indebtedness of any other person (other than a wholly owned subsidiary), other than (i) incurrence of intercompany indebtedness and (ii), in the case of WRI, incurred under the WRI revolving credit facility of the WRI credit facility as in effect as of April 15, 2021 for working capital purposes in the ordinary course of business in aggregate principal amount not to exceed $40,000,000 at any time outstanding;

•

enter into, renew, modify, amend or terminate, waive, release, compromise or assign any rights or claims under, any WRI material contract (or any contract that, if existing as of April 15, 2021, would

•

enter into, renew, modify, amend or terminate, waive, release, compromise or assign any rights or claims under, any material WRI lease (or any lease for real property that, if existing as of April 15, 2021, would be a material WRI lease), other than (i) any termination or renewal in accordance with the terms of any existing material WRI lease that occurs automatically without any action by WRI or any of its subsidiaries or (ii) terminating any material WRI lease as a result of a default by the counterparty to such material WRI lease (in accordance with the terms of such material WRI lease and subject to any applicable cure period therein);

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make any material loans, advances or capital contributions to, or investments in, any other person, make any change in its existing borrowing or lending arrangements for or on behalf of such persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (i) by WRI or a wholly owned subsidiary of WRI to WRI or another wholly owned subsidiary of WRI, (ii) loans or advances required to be made under any WRI lease, or (iii) capital contributions or loans expressly required by the organizational documents of any WRI subsidiaries as in effect prior to April 15, 2021;

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make or commit to make any capital expenditures other than pursuant to the WRI’s budgets made available to Kimco;

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initiate or commence any suit, action, investigation or proceeding against any other person (other than in connection with any termination of any WRI lease that is not a material WRI lease as a result of a default by the counterparty to such WRI lease (in accordance with the terms of such WRI lease and subject to any applicable cure period therein)), or, other than in respect of certain stockholder litigation in connection with the Merger, waive, release, assign, settle or compromise any claim, action, litigation, arbitration or proceeding, other than waivers, releases, assignments, settlements or compromises that (i) with respect to the payment of monetary damages, involve only the payment of monetary damages (excluding any portion of such payment payable under an existing property-level insurance policy) that do not exceed $500,000 individually or $2,000,000 in the aggregate, (ii) do not involve the imposition of injunctive relief against WRI or any of its subsidiaries, Kimco, the surviving corporation of the Merger or any subsidiary of Kimco following the effective time of the Merger and (iii) do not provide for any admission of any liability by WRI or any of its subsidiaries; except that this provision does not apply to any claim, suit, or proceeding with respect to taxes;

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except as required by any WRI benefit plan in effect as of April 15, 2021, (i) increase the compensation, bonus or pension, welfare, severance or other benefits payable or provided to, or grant any cash- or equity-based awards (including WRI restricted share awards) or long-term cash awards to, any current or former directors, employees or other natural person, independent contractor or consultant of WRI or any of its subsidiaries, (ii) grant or provide any change of control, severance, bonus, retention or other similar payments or benefits to any director, employee or other individual service provider of WRI or any of its subsidiaries (including any obligation to gross up, indemnify or otherwise reimburse any such individual for any tax incurred by any such individual, including under Section 409A, 457A or 4999 of the Code), (iii) establish, adopt, enter into or materially amend any WRI benefit plan or any other plan, policy, program, agreement or arrangement that would be a WRI benefit plan if in effect on April 15, 2021, (iv) enter into any collective bargaining agreement or similar agreement, (v) hire, promote or terminate the services (other than for cause) of any independent contractor of WRI or any of its subsidiaries who is a natural person with a total annual compensation opportunity in excess of $300,000, with the incremental cost of all compensation and benefits provided to such newly hired or promoted independent contractors not to exceed $600,000 in the aggregate, (vi) hire, promote or terminate the employment (other than for cause) of any employee of WRI or any of its subsidiaries with a total annual compensation opportunity in excess of $100,000, with the

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enter into any contract with, or engage in any transaction with, any of its affiliates (other than its subsidiaries), directors or stockholders (or affiliates of the foregoing (other than its subsidiaries)), other than transactions with directors and officers in the ordinary course and consistent with past practice as long as such transactions are applicable for all directors or all officers, respectively, and other than as expressly permitted by the Merger Agreement in respect of compensation and benefits matters prior to the effective time of the Merger, described in the bullet point immediately above;

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enter into, amend or modify any tax protection agreement, or take any action or fail to take any action that would give rise to a material liability with respect to any tax protection agreement to which WRI or any of its subsidiaries is a party;

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enter into any development contract with any governmental entity, other than with respect to any permits or the application to a governmental entity for rezoning or other entitlements;

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demolish or enter into any contract to demolish any material structures on any of the WRI properties or WRI joint venture properties, except in connection with the initial development of such properties; or

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grant the deferral of any rent in excess of $1,000,000 in the aggregate or the abatement of any rent or other obligations of any tenant under any material WRI lease.

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cooperation between Kimco and WRI in the preparation of this joint proxy statement/prospectus and the registration statement of which it forms a part;

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each party’s agreement to afford the representatives of the other party access to its properties (other than for purposes of invasive testing), books, contracts, records and representatives during normal business hours;

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each party’s agreement to use its reasonable best efforts to take all actions necessary, proper or advisable to consummate the Merger and the other transactions contemplated by the Merger Agreement, including using its reasonable best efforts to cooperate to obtain all governmental consents, clearances, approvals, permits or authorizations required to complete the Merger;

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each party’s agreement to (i) use its reasonable best efforts to cooperate in all respects in connection with any investigation or other inquiry, (ii) promptly notify the other party of any communication concerning the Merger Agreement or the transactions contemplated thereby from or with any governmental entity, (iii) permit the other party to review and comment on any proposed substantive or non-ministerial communication to any governmental entity, (iv) consult with the other party in advance of any substantive or non-ministerial meeting with any governmental entity or in connection with a proceeding by a private party and (v) use its reasonable best efforts to resolve objections with respect to the transactions contemplated by the Merger Agreement;

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each party’s agreement to use its reasonable best efforts to take such actions as the other may reasonably request to obtain any consents from any third parties (excluding any governmental entity) as may be reasonably required to consummate the Merger or the other transactions contemplated by the Merger Agreement;

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Kimco’s agreement to use its reasonable best efforts to cause the shares of Kimco common stock to be issued in connection with the Merger to be approved for listing on the NYSE, subject to official notice of issuance;

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each party’s agreement to consult with the other party, and provide meaningful opportunity for review and give due consideration to reasonable comment by the other party, prior to issuing any public communications with respect to the Merger and the other transactions contemplated by the Merger Agreement; and

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each party’s agreement to use its reasonable best efforts to cause the Merger to qualify as a “reorganization” under the Code.

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provide all cooperation reasonably requested by Kimco in connection with financing arrangements (including, without limitation, assumptions, guarantees, amendments, supplements, modifications, refinancings, replacements, repayments, terminations or prepayments of existing financing arrangements) as Kimco may reasonably determine necessary or advisable in connection with the completion of the Merger or the other transactions contemplated by the Merger Agreement, such cooperation shall include (i) participating in a reasonable number of meetings, presentations and due diligence sessions in connection with such financing arrangements, (ii) providing reasonable and timely assistance with the preparation of materials for presentations, offering memoranda, prospectuses and similar documents required in connection with such financing arrangements (including relating to the preparation of pro forma financial statements), (iii) as promptly as reasonably practical, and in any event at least 20 days prior to the closing of the Merger, furnishing Kimco and any of its financing sources with (A) audited consolidated balance sheets and related audited consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for each of the three most recently completed fiscal years of WRI ended at least 60 days prior to the closing of the Merger, in each case, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year and (B) unaudited consolidated balance sheets and related condensed consolidated statements of operations, comprehensive income, changes in equity and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for WRI for each subsequent fiscal quarter ended at least 40 days prior to the closing of the Merger (other than the fourth fiscal quarter of any fiscal year), in each case, prepared in accordance with GAAP and reviewed by WRI’s independent public accountants, and (C) any other information regarding WRI and its subsidiaries that Kimco may reasonably request in connection with the arrangement or execution of such financing arrangements, (iv) obtain customary authorization letters, comfort letters and accountants’ consent letters as may be requested by Kimco, and (v) to the extent requested in writing at least 10 business days prior to the closing of the Merger, delivering at least three business days prior to the closing of the Merger all documentation and other information with respect to WRI and its subsidiaries that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the USA PATRIOT Act; notwithstanding the foregoing, WRI and its subsidiaries and their respective representatives shall not be required to enter into any letter, certificate, document, agreement or instrument (other than customary authorization and representation letters) that will be effective prior to the closing of the Merger and nothing in the financing cooperation provision of the Merger Agreement described in this paragraph shall require (x) such cooperation to the extent it would disrupt unreasonably the business or operations of WRI or any of its subsidiaries or require any of them to take any actions that would reasonably be expected to violate applicable law, contract or its or their organizational documents, (y) the board of directors or similar governing body of WRI or any subsidiary of WRI to adopt resolutions approving any letter, certificate, document, agreement or

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use reasonable best efforts to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Kimco to do so, on the terms and conditions specified by Kimco and in compliance with all applicable terms and conditions of the applicable WRI debt agreements, seek amendment(s) to any of the WRI debt agreements or pursue any approach chosen by Kimco to the assumption, defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee, purchase, unwinding or other treatment of, the WRI debt agreements and the indebtedness incurred pursuant thereto, in each case, subject to the occurrence of the closing of the Merger;

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use reasonable best efforts to provide cooperation and assistance reasonably requested by Kimco in connection with the debt transactions discussed in the previous paragraph, (including taking all corporate action reasonably necessary to authorize the execution and delivery of associated transaction documents to be entered into prior to closing of the Merger Agreement and delivering all officer’s certificates and legal opinions required to be delivered in connection therewith); provided that, the effectiveness of any such transaction documents or notices of prepayment or redemption shall be expressly conditioned on the closing of the Merger;

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deliver all notices and take all other actions to facilitate the termination at the effective time of the Merger of all commitments in respect of each of the WRI credit facility and any other indebtedness of WRI or its subsidiaries to be paid off, discharged and terminated on the closing of the Merger as specifically requested by Kimco in writing, the repayment in full on the closing of the Merger of all obligations in respect of the indebtedness thereunder, and the release on the closing of the Merger of any liens securing such indebtedness and guarantees in connection therewith; and

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use reasonable best efforts to deliver to Kimco (i) at least 10 business days prior to the closing of the Merger (or such shorter period as agreed by Kimco), a draft payoff letter with respect to each of the WRI credit facility and, if requested by Kimco to WRI in writing, any other indebtedness (including mortgages) of WRI or its subsidiaries to be paid off, discharged and terminated on the closing of the Merger and (ii) at least one business day prior to the closing of the Merger, an executed payoff letter with respect to each of the WRI credit facility and such other indebtedness (including mortgages) of WRI or its subsidiaries to be paid off, discharged and terminated on the closing of the Merger, in each case in form and substance customary for transactions of this type from the persons (or the applicable agent on behalf of the persons) to whom such indebtedness is owed, which payoff letters together with any related release documentation shall, among other things, (x) include the payoff amount and (y) provide that liens (and guarantees), if any, granted in connection with the WRI credit facility or any such other indebtedness of WRI to be paid off, discharged and terminated on the closing of the Merger relating to the assets, rights and properties of WRI and its subsidiaries securing or relating to such indebtedness, shall, upon the payment of the amount set forth in the applicable payoff letter at or prior to the effective time of the Merger, be released and terminated.

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stockholder approval of the Kimco Merger Proposal and shareholder approval of the WRI Merger Proposal;

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the approval of listing on the NYSE of shares of Kimco common stock to be issued in connection with the Merger, subject to official notice of issuance;

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the SEC having declared effective the registration statement of which this joint proxy statement/prospectus forms a part, and the absence of any stop order or proceedings seeking a stop order;

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the absence of any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger; and

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the absence of any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger, by any governmental entity of competent jurisdiction which makes the consummation of the Merger illegal.

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the representations and warranties of Kimco set forth in the Merger Agreement with respect to its authorized share count as of April 15, 2021 and its capitalization as of April 13, 2021 being true and correct in all respects, except for any de minimis inaccuracies, as of April 15, 2021 and as of the closing date as though made on and as of the closing date;

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the representations and warranties of Kimco set forth in the Merger Agreement with respect to an absence of a Kimco material adverse effect being true and correct in all respects as of April 15, 2021 and as of the closing date as though made on and as of the closing date;

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the representations and warranties of Kimco set forth in the Merger Agreement with respect to its organization, standing and power, capital structure (other than the representations and warranties described in the first bullet point), board approval, required vote of Kimco stockholders, status as an investment company, brokers and finders and fairness opinion of Kimco’s financial advisers being true and correct in all material respects as of April 15, 2021 and as of the closing date as though made on and as of the closing date (except to the extent expressly made as of an earlier date, in which case as of such date);

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the representations and warranties of Kimco set forth in the Merger Agreement with respect to all other matters being true and correct as of April 15, 2021 and as of the closing date as though made on and as of the closing date (except to the extent expressly made as of an earlier date, in which case as of such date), other than, where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to materiality or material adverse effect) would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Kimco;

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Kimco having performed in all material respects the obligations required to be performed by it under the Merger Agreement at or prior to the closing of the Merger;

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the receipt of an opinion of Dentons US LLP (or other nationally recognized law firm) to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code;

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the receipt of an opinion addressed to Kimco from Kimco’s REIT counsel that, at all times since Kimco’s taxable year ended December 31, 2015 and through the closing date, Kimco has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code and that Kimco’s proposed method of organization and operation will enable Kimco to continue to meet the requirements for qualification and taxation as a REIT under the Code; and

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the receipt of an officers’ certificate signed by the chief executive officer or chief financial officer of Kimco, certifying that the conditions listed in the first five bullet points above have been satisfied.

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the representations and warranties of WRI set forth in the Merger Agreement with respect to its authorized share count as of April 15, 2021 and capitalization as of April 13, 2021 being true and correct in all respects, except for any de minimis inaccuracies, as of April 15, 2021 and as of the closing date as though made on and as of the closing date;

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the representations and warranties of WRI set forth in the Merger Agreement with respect to the absence of a WRI material adverse effect being true and correct in all respects as of April 15, 2021 and as of the closing date as though made on and as of the closing date;

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the representations and warranties of WRI set forth in the Merger Agreement with respect to its organization, standing and power, capital structure (other than the representations and warranties described in the first bullet point), board approval, required vote of WRI shareholders, status as an investment company, brokers and finders and fairness opinion of WRI’s financial adviser being true and correct in all material respects as of April 15, 2021 and as of the closing date as though made on and as of the closing date (except to the extent expressly made as of an earlier date, in which case as of such date);

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the representations and warranties of WRI set forth in the Merger Agreement with respect to all other matters being true and correct as of April 15, 2021 and as of the closing date as though made on and as of the closing date (except to the extent expressly made as of an earlier date, in which case as of such date), other than, where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to materiality or material adverse effect) would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on WRI;

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WRI having performed in all material respects the obligations required to be performed by it under the Merger Agreement at or prior to the closing of the Merger;

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the receipt of an opinion of Wachtell, Lipton, Rosen & Katz (or other nationally recognized law firm) to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code;

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the receipt of an opinion addressed to WRI from WRI’s REIT counsel that, at all times since WRI’s taxable year ended December 31, 2015 and through the taxable year that ends with the effective time of the Merger, WRI has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code; and

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the receipt of an officers’ certificate signed by the chief executive officer or chief financial officer of WRI, certifying that the conditions listed in the first five bullet points above have been satisfied.

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a bona fide written acquisition proposal (that did not result from a breach of WRI’s non-solicitation obligations in any material respect) is made to WRI by a third party, and such acquisition proposal is not withdrawn;

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the WRI board of trust managers determines in good faith (after consultation with its outside legal counsel and financial advisors) that such acquisition proposal constitutes a superior proposal;

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the WRI board of trust managers has determined in good faith (after consultation with its outside legal counsel) that failure to make a change in recommendation or terminate the Merger Agreement to enter into an acquisition agreement would be inconsistent with the duties of the members of the WRI board of trust managers under applicable law;

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96 hours shall have elapsed since the time WRI has given written notice to Kimco advising Kimco that WRI intends to take such action and specifying in reasonable detail its reasons, including the terms and

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during such period, WRI has considered and, at the reasonable request of Kimco, engaged in good faith discussions with Kimco regarding, any adjustment or modification of the terms of the Merger Agreement proposed by Kimco; and

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the WRI board of trust managers, following such period, again determines in good faith (after consultation with outside legal counsel and financial advisors, and taking into account any adjustment or modification of the terms of the Merger Agreement that Kimco has committed in writing prior to the expiration of such period and that are reflected in a written definitive agreement that would be binding on Kimco if executed and delivered by WRI) that such acquisition proposal (i) be reflected in a written definitive agreement that would be binding, subject to the terms and conditions of such written definitive agreement, on the applicable person making the superior proposal, if executed and delivered by WRI and (ii) constitute a superior proposal and that the failure to make a change in recommendation or terminate the Merger Agreement to enter into an acquisition agreement would be inconsistent with the duties of the members of the WRI board of trust managers under applicable law.

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by mutual written consent of Kimco and WRI;

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by either Kimco or WRI:

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if any governmental entity of competent jurisdiction shall have issued an order, decree or ruling in each case permanently enjoining or otherwise prohibiting the consummation of the Merger, and such order, decree or ruling has become final and nonappealable, provided that the right to terminate the Merger Agreement under such circumstance is not available to any party whose failure to comply with any provision of the Merger Agreement has been the principal cause of or resulted in such order, decree or ruling;

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if the Merger shall not have been consummated by 5:00 p.m., New York time, on January 15, 2022 (which we refer to as the “outside date”), provided that the right to terminate the Merger Agreement under such circumstance is not available to any party whose failure to comply with any provision of the Merger Agreement has been the principal cause of or resulted in the failure of the Merger to be consummated before the outside date;

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if the other party shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in the Merger Agreement (other than, in the case of WRI, with respect to a material breach of its non-solicitation obligations or a change in recommendation), which breach or failure to perform or to be true (i) would result in the failure of a condition of closing to be satisfied and (ii) cannot be cured by the outside date or, if curable prior to the outside date, has not been cured by the earlier of (A) the outside date and (B) 30 days after the

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if the approval of the WRI Merger Proposal or the Kimco Merger Proposal shall not have been obtained upon a vote taken thereon at the WRI special meeting or Kimco special meeting, respectively, or at any adjournment or postponement thereof.

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by WRI:

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at any time prior to obtaining approval of the WRI Merger Proposal, in order to enter into an acquisition agreement as described in “—Change in Recommendation,” above, provided that the WRI termination fee shall be paid within two business days following the termination of the Merger Agreement by WRI under such circumstances;

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by Kimco: