KIMCO REALTY CORP

DEF 14A 1 ny20034130x13_def14a.htm DEF 14A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the Securities

Exchange Act of 1934

Filed by the Registrant ☒

Filed by a party other than the Registrant ☐

Check the appropriate box:

KIMCO REALTY CORPORATION

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check all boxes that apply):

KIMCO REALTY CORPORATION

OFFER TO PURCHASE FOR CASH ANY AND ALL

OF ITS OUTSTANDING DEPOSITARY SHARES REPRESENTING 1/1,000

OF A SHARE OF 7.25% CLASS N CUMULATIVE CONVERTIBLE

PERPETUAL PREFERRED STOCK AND CONSENT SOLICITATION

THE OFFER (AS DEFINED BELOW) AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 4, 2024, UNLESS KIMCO REALTY CORPORATION EXTENDS OR EARLIER TERMINATES THE OFFER (SUCH TIME AND DATE, AS IT MAY BE EXTENDED WITH RESPECT TO THE OFFER, THE “EXPIRATION DATE”).

On August 28, 2023, Kimco Realty Corporation, a Maryland corporation (the “Company”), and RPT Realty, a Maryland real estate investment trust (“RPT”), entered into a definitive merger agreement (the “Merger Agreement”) pursuant to which the Company would acquire RPT through a series of mergers (collectively, the “RPTMerger”). On January 2, 2024, RPT merged with and into the Company, with the Company continuing as the surviving public company. Under the terms of the Merger Agreement, each 7.25% Series D Cumulative Convertible Perpetual Preferred Share of RPT (the “RPT Preferred Shares”) was converted into the right to receive one depositary share issued by the Company (each, a “Security” and, collectively, the “Securities”) representing one one-thousandth of a share of the Company’s 7.25% Class N Cumulative Convertible Perpetual Preferred Stock, par value $1.00 per share (the “Class N Preferred Stock”). In connection with the RPT Merger, the Company issued 1,848,539 Securities representing in the aggregate approximately 1,849 shares of Class N Preferred Stock. See Section 10.

The Company hereby offers to purchase for cash, upon the terms and subject to the conditions set forth in this offer to purchase (as it may be amended or supplemented from time to time, the “Offer to Purchase and Consent Solicitation”) and in the accompanying letter of transmittal and consent (as it may be amended or supplemented from time to time, the “Letter of Transmittal and Consent,” and, together with this Offer to Purchase and Consent Solicitation, the “Offer”), any and all of its outstanding Securities at the offer price set forth below. The following table sets forth some of the terms of the Offer:

The consideration for each Security tendered and accepted for purchase will equal $62.00, plus accrued and unpaid dividends, if any, for the period from and including the last dividend payment date, to, but not including, the Settlement Date (the “Offer Price”). We have declared a quarterly dividend on the Class N Preferred Stock (the “Declared Dividend”) to be paid on January 15, 2025 (the “Dividend Payment Date”) to shareholders of record on January 2, 2025 (the “Dividend Record Date”). Holders of Securities who validly tender their Securities (and whose Securities are accepted for purchase by the Company) in the Offer will receive accrued and unpaid dividends, if any, for the period from and including the last dividend payment date, to, but not including, the Settlement Date, unless the Settlement Date occurs on or following the Dividend Record Date and prior to the Dividend Payment Date (in which case accrued and unpaid dividends related to the Declared Dividend will not be paid to tendering holders on the Settlement Date and the Declared Dividend will be paid to holders of record on the Dividend Record Date). At the time you tender your Securities, you will not know the extent of participation by other holders of Securities in the Offer and Consent Solicitation.

Concurrently with the Offer, we also are soliciting consents (the “Consent Solicitation”) from (i) holders of the outstanding shares of Class N Preferred Stock (which requires soliciting the holders of the outstanding Securities) to, at any point during the 12-month period beginning on the Expiration Date (as defined below), amend (the “Preferred Amendment”) the charter of the Company (the “Charter”) to provide the Company, from and after the effective date of the Preferred Amendment, with the option to redeem the Class N Preferred Stock during the 90 days following the date of effectiveness of the Preferred Amendment at a redemption price for each share of Class N Preferred Stock equal to $60,340.00 (which would mean a redemption price for each Security equal to $60.34), plus accrued and unpaid dividends, if any, for the period from and including the last dividend payment date to, but not including, the redemption date) and (ii) holders of the Securities to amend the Deposit Agreement (as defined below) (the “Deposit Agreement Amendment”) to make corresponding changes to the Deposit Agreement related to the Preferred Amendment, substantially as contemplated on Annex B hereto. Consent from the holders of at least two-thirds of the outstanding shares of Class N Preferred Stock (which corresponds to tenders from holders of two-thirds of the outstanding Securities) (the “Requisite Preferred Shareholder Consents”) is required to approve the Preferred Amendment in order to effect the Preferred Amendment, as well as the affirmative vote of the holders of a majority of the outstanding shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), voting as a single class and separate from holders of the Securities (the “Requisite Common Stockholder Approval”). Consent from the holders of at least two-thirds of the outstanding Securities is required to approve the Deposit Agreement Amendment (the “Requisite Deposit Agreement Amendment Approval” and, together with the Requisite Preferred Shareholder Consents and the Requisite Common Stockholder Approval, the “Requisite Approvals”). We plan to solicit the Requisite Common Stockholder Approval from the holders of our Common Stock in support of the Preferred Amendment at the Company’s next annual meeting of stockholders, which is expected to be held in late April or early May of 2025 (the “2025 Annual Meeting”), but may do so prior or subsequent to such meeting and may do so more than once during the 12-month effectiveness of the Requisite Preferred Shareholder Consents. The Offer and Consent Solicitation do not constitute a solicitation of consents from holders of our Common Stock to the Preferred Amendment. The solicitation of consents from holders of our Common Stock to the Preferred Amendment is expected to be made pursuant to a definitive proxy statement on Schedule 14A to be filed with the SEC in advance of the 2025 Annual Meeting (the “2025 Proxy Statement”).

If the Requisite Approvals are obtained and the Preferred Amendment and Deposit Agreement Amendment are effected, we will have the option to redeem all shares of Class N Preferred Stock (and, consequently, Securities) that remain outstanding following the consummation of the Offer and Consent Solicitation during the 90 days following the date of effectiveness of the Preferred Amendment at the redemption price referred to in the prior paragraph. At such time, the Company’s Board of Directors intends to consider redeeming all shares of Class N Preferred Stock (and, consequently, Securities) that remain outstanding, subject to determining whether a redemption is advisable and in the best interests of the Company. The decision whether or not to redeem shares of Class N Preferred Stock (and, consequently, Securities) that remain outstanding at such time will be based on the price and volume of any recent secondary market sales of the Securities, prevailing interest rates at the time, Company cash on hand and any legal or contractual restrictions on cash distributions to the Company from its subsidiaries, among other factors. As of the date of this Offer to Purchase and Consent Solicitation, the Company has sufficient cash on hand to purchase the maximum number of Securities sought in the Offer, and there are no legal or contractual restrictions on cash distributions from subsidiaries that would limit the purchase of the Securities in the Offer. A copy of the proposed Articles of Amendment effecting the Preferred Amendment (the “Articles of Amendment”) is attached hereto as Annex A. We urge you to carefully read the Articles of Amendment in its entirety. The filing and effectiveness of the Preferred Amendment is conditioned on obtaining the Requisite Approvals. If we fail to receive the Requisite Approvals during the 12-month period beginning on the Expiration Date, the Preferred Amendment will not be effectuated. If the Preferred Amendment is not effectuated, or if the Company’s Board of Directors determines that a redemption is not advisable and in the best interests of the Company, the Company’s redemption of Securities that remain outstanding following the Offer would not occur and holders may be left holding a highly illiquid security. See “Potential Effects on Holders of Securities—Reduced Liquidity and Increased Volatility.”

Following completion of the Offer and Consent Solicitation, the Securities may no longer meet the New York Stock Exchange’s (“NYSE”) continued listing criteria for preferred stock, in which case the Securities will be delisted from the NYSE and the Company will file a Form 25 to terminate registration of the Securities under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

You must validly tender all Securities that you own in order to participate in the Offer and Consent Solicitation. You may not consent to the Preferred Amendment without tendering your Securities in the Offer and Consent

Solicitation, and you may not tender your Securities for exchange in the Offer and Consent Solicitation without consenting to the Preferred Amendment. The Offer and the Consent Solicitation are conditioned upon receipt of the Requisite Preferred Shareholder Consents, which effectively requires tenders from holders of at least two-thirds of the outstanding shares of Class N Preferred Stock (which corresponds to tenders from holders of two-thirds of the outstanding Securities). The consent to the Preferred Amendment is a part of the Letter of Transmittal and Consent, and holders will be required to deliver to us such consent as a condition to tendering Securities in the Offer. You may revoke your consent to the Preferred Amendment with respect to any Securities you have tendered at any time prior to the Expiration Date only by withdrawing the Securities you have tendered. Following the Expiration Date, assuming the Company’s acceptance for purchase of any and all of your validly tendered and not properly withdrawn Securities, you may not revoke your consent to the Preferred Amendment.

The Securities are traded on the NYSE. The last reported sale price on November 1, 2024 was $60.79.

The Offer Price for the Securities could be above or below the last reported sale price of the Securities on the Expiration Date. Holders of Securities should obtain current market quotations for the Securities before deciding whether to tender their Securities and consent to the Preferred Amendment pursuant to the Offer and Consent Solicitation.

THE OFFER AND THE CONSENT SOLICITATION ARE CONDITIONED UPON RECEIPT OF THE REQUISITE PREFERRED SHAREHOLDER CONSENTS, WHICH REQUIRES TENDERS FROM HOLDERS OF AT LEAST TWO-THIRDS OF THE OUTSTANDING SHARES OF CLASS N PREFERRED STOCK (WHICH CORRESPONDS TO TENDERS FROM HOLDERS OF TWO-THIRDS OF THE OUTSTANDING SECURITIES). THE OFFER AND CONSENT SOLICITATION ARE SUBJECT TO CERTAIN OTHER CONDITIONS. SEE SECTION 9 WHICH SETS FORTH IN FULL THE CONDITIONS TO THE OFFER AND CONSENT SOLICITATION.

THE COMPANY’S BOARD OF DIRECTORS HAS DETERMINED THAT THE OFFER AND CONSENT SOLICITATION ARE ADVISABLE AND IN THE BEST INTERESTS OF THE COMPANY AND THAT THE OFFER AND CONSENT SOLICITATION ARE FAIR TO HOLDERS OF THE SECURITIES, INCLUDING THE UNAFFILIATED HOLDERS THEREOF, AND HAS DECLARED THE PREFERRED AMENDMENT ADVISABLE AND IS SUBMITTING THE PREFERRED AMENDMENT TO THE HOLDERS OF THE CLASS N PREFERRED STOCK (AND THEREFORE THE HOLDERS OF THE SECURITIES) FOR CONSIDERATION; HOWEVER, NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS, NOR ANY OTHER PERSON, MAKES ANY RECOMMENDATION TO HOLDERS OF SECURITIES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SECURITIES OR TO PROVIDE OR REFRAIN FROM PROVIDING THEIR CONSENT TO THE PREFERRED AMENDMENT IN THE OFFER AND CONSENT SOLICITATION. YOU SHOULD READ CAREFULLY THE INFORMATION IN THIS OFFER TO PURCHASE AND CONSENT SOLICITATION AND IN THE LETTER OF TRANSMITTAL AND CONSENT BEFORE MAKING YOUR DECISION WHETHER TO TENDER YOUR SECURITIES AND TO CONSENT TO THE PREFERRED AMENDMENT IN THE OFFER AND CONSENT SOLICITATION. IN ADDITION, YOU SHOULD CONSULT YOUR OWN TAX, ACCOUNTING, FINANCIAL AND LEGAL ADVISERS AS YOU DEEM APPROPRIATE REGARDING THE TAX, ACCOUNTING, FINANCIAL AND LEGAL CONSEQUENCES OF PARTICIPATING OR DECLINING TO PARTICIPATE IN THE OFFER AND CONSENT SOLICITATION.

This Offer to Purchase and Consent Solicitation has not been approved by the Securities and Exchange Commission (the “SEC”) or any state securities commission, nor has the SEC or any state securities commission passed upon the merits or fairness of the Offer and Consent Solicitation or passed upon the adequacy or accuracy of the information contained in this Offer to Purchase and Consent Solicitation and related documents. Any representation to the contrary is a criminal offense. No person has been authorized to give any information or make any representations with respect to the Offer and Consent Solicitation other than the information and representations contained or incorporated by reference herein and, if given or made, such information or representations must not be relied upon as having been authorized.

Neither the delivery of this Offer to Purchase and Consent Solicitation and related documents nor any purchase of Securities by the Company will, under any circumstances, create any implication that the information contained in this Offer to Purchase and Consent Solicitation or in any related document is current as of any time subsequent to the date of such information.

You may direct questions and requests for assistance to J.P. Morgan Securities LLC, the dealer manager (in such capacity, the “Dealer Manager”) and consent solicitation agent (in such capacity, the “Solicitation Agent”) for the Offer and Consent Solicitation, D.F. King & Co., Inc., the information agent (the “Information Agent”) for the Offer and Consent Solicitation or Equiniti Trust Company, LLC, the tender agent (the “Tender Agent”) for the Offer and Consent Solicitation, at the contact information set forth on the last page of this Offer to Purchase and Consent Solicitation. You may direct requests for additional copies of this Offer to Purchase and Consent Solicitation to the Information Agent and Tender Agent.

In connection with the Offer and Consent Solicitation, our and our affiliates’ officers and other representatives may solicit tenders and consents by use of the mails, personally or by telephone, facsimile, telegram, electronic communication or other similar methods. We will also pay a Soliciting Broker Fee (as defined herein) of $0.25 for each Security that is validly tendered and accepted for purchase pursuant to the Offer and for which a consent has been delivered pursuant to the Consent Solicitation to retail brokers that are appropriately designated by their tendering holder clients to receive this fee; provided that such fee will only be paid with respect to tenders by holders of 10,000 Securities or fewer. We will also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding copies of this Offer to Purchase and Consent Solicitation and related documents to the beneficial owners of the Securities and in handling or forwarding tenders of Securities by their customers.

The Dealer Manager and Solicitation Agent for the Offer and Consent Solicitation is:

J.P. Morgan

The date of this Offer to Purchase and Consent Solicitation is November 4, 2024.

IMPORTANT

The Offer and Consent Solicitation have certain conditions and no assurance can be given that these conditions will be satisfied. See Section 9.

All of the Securities are held in book-entry form through the facilities of The Depository Trust Company (“DTC”) and must be tendered through DTC. If you desire to tender Securities, a DTC participant must electronically transmit your acceptance of the applicable Offer and Consent Solicitation through DTC’s Automated Tender Offer Program (“ATOP”), for which the transaction will be eligible. In accordance with ATOP procedures, DTC will then verify the acceptance of such Offer and Consent Solicitation and send an agent’s message (as hereinafter defined) to the Tender Agent for its acceptance. An “agent’s message” is a message transmitted by DTC, received by the Tender Agent and forming part of the book-entry confirmation, which states that DTC has received an express acknowledgment from you that you have received the applicable Offer and Consent Solicitation and agree to be bound by the terms of such Offer and Consent Solicitation, and that the Company may enforce such agreement against you. Alternatively, you may also confirm your acceptance of the Offer and Consent Solicitation by delivering to the Tender Agent a duly executed Letter of Transmittal and Consent. A tender will be deemed to have been received only when the Tender Agent receives (i) either a duly completed agent’s message through the facilities of DTC at the Tender Agent’s DTC account or a properly completed Letter of Transmittal and Consent, and (ii) confirmation of book-entry transfer of the Securities into the Tender Agent’s applicable DTC account. If your Securities are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should contact that person if you desire to tender your Securities. See Section 6.

There are no guaranteed delivery procedures available with respect to the Offer and Consent Solicitation under the terms of this Offer to Purchase and Consent Solicitation or any related materials. Holders must tender their Securities and consent to the Preferred Amendment in accordance with the procedures set forth in this Offer to Purchase and Consent Solicitation. See Section 6.

The Company’s Board of Directors has determined that the Offer and Consent Solicitation are advisable and in the best interests of the Company and that the Offer and Consent Solicitation are fair to holders of the Securities, including the unaffiliated holders thereof, and has declared the Preferred Amendment advisable and is submitting the Preferred Amendment to the holders of the Class N Preferred Stock (and therefore the holders of the Securities) for consideration; however, neither the Company nor its Board of Directors, nor any other person, makes any recommendation to holders of Securities as to whether to tender or refrain from tendering their Securities or to provide or refrain from providing their consent to the Preferred Amendment in the Offer and Consent Solicitation. You should read carefully the information in this Offer to Purchase and Consent Solicitation before making your decision whether to tender your Securities and to consent to the Preferred Amendment. The Company has not authorized any person to make any recommendation on its behalf as to whether you should tender or refrain from tendering your Securities or provide or refrain from providing your consent to the Preferred Amendment in the Offer and Consent Solicitation. The Company has not authorized any person to give any information or to make any representation in connection with respect to the Offer and Consent Solicitation other than those contained in this Offer to Purchase and Consent Solicitation or in the Letter of Transmittal and Consent. If given or made, you must not rely upon any such information or representation as having been authorized by the Company, the Information Agent and Tender Agent or the Dealer Manager and Solicitation Agent. You must make your own decision whether to tender your Securities and whether to consent to the Preferred Amendment.

The Company is not making the Offer and Consent Solicitation to (nor will it accept any tender of Securities from or on behalf of) any holders of Securities in any jurisdiction in which the making of the Offer and Consent Solicitation or the acceptance of any tender of Securities would not be in compliance with the laws of such jurisdiction, provided that we will comply with the requirements of Rule 13e-4(f)(8) promulgated under the Exchange Act. However, the Company may, at its discretion, take such action as the Company may deem necessary for it to make the Offer and Consent Solicitation in any such jurisdiction and extend the Offer and Consent Solicitation to holders of Securities in such jurisdiction. In any jurisdiction the securities or blue sky laws of which require the Offer and Consent Solicitation to be made by a licensed broker or dealer, the Offer and Consent Solicitation shall be deemed to be made on the Company’s behalf by one or more registered brokers or dealers which are licensed under the laws of such jurisdiction.

THIS OFFER TO PURCHASE AND CONSENT SOLICITATION AND THE LETTER OF TRANSMITTAL AND CONSENT CONTAIN IMPORTANT INFORMATION THAT HOLDERS ARE URGED TO READ BEFORE MAKING ANY DECISION WITH RESPECT TO THE OFFER AND CONSENT SOLICITATION.

i

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

When used in this Offer to Purchase and Consent Solicitation or any related document and in public stockholder communications, in other documents of the Company filed with or furnished to the SEC, or in oral statements made with the approval of an authorized executive officer, the words “believe,” “expect,” “intend,” “commit,” “anticipate,” “estimate,” “project,” “will,” “target,” “plan,” “forecast” and similar expressions are intended to identify forward-looking statements. There are a number of important factors that could cause the results of the Company to differ materially from those indicated by such forward-looking statements, including but not limited to the following. You are cautioned not to place undue reliance on any forward-looking statements, which speak only as of the date made. By their nature, these statements are subject to numerous uncertainties that could cause actual results to differ materially from those anticipated in the statements.

Factors which may cause actual results to differ materially from current expectations include, but are not limited to, the following:

ii

This list of risks is not exhaustive. Additional information regarding risk factors that may affect us is discussed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 26, 2024, which is incorporated by reference herein. See Section 19. In light of the significant uncertainties inherent in the forward-looking statements included or incorporated by reference herein, the inclusion of such information should not be regarded as a representation by us or any other person that our objectives and plans will be achieved. Moreover, we assume no obligation to update these forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting such forward-looking statements, except as required by law.

iii