SEC Form SC TO-I filed by Kimco Realty Corporation (HC)

This Tender Offer Statement on Schedule TO (this “Schedule TO”) is being filed by Kimco Realty Corporation, a Maryland corporation (the “Company”), and relates to an offer by the Company to purchase for cash all of its outstanding depositary shares each representing 1/1,000 of a share of 7.25% Class N Cumulative Convertible Perpetual Preferred Stock, par value $1.00 per share, of the Company, upon the terms and subject to the conditions set forth in the Offer to Purchase and Consent Solicitation, dated November 4, 2024 (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 the Offer to Purchase and Consent Solicitation, the “Offer”), at a price per Security (as defined below) of $62.00, plus any accrued and unpaid dividends. The Company has 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 (as defined below) 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 (as defined below), 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.

On August 28, 2023, 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 “RPT Merger”). 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 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.

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 consents from holders of the outstanding Securities) to, at any point during the 12-month period beginning at 5:00 p.m. New York City time, on December 4, 2024 (the “Expiration Date”), amend (the “Preferred Amendment”) the terms of the Class N Preferred Stock in the charter of the Company 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, by and between the Company and Equiniti Trust Company, LLC, as depositary, registrar and transfer agent, governing the terms of the Securities (the “Deposit Agreement”) to make corresponding changes to the Deposit Agreement related to the Preferred Amendment, substantially as contemplated on Annex B in the Offer to Purchase and Consent Solicitation (the “Deposit Agreement Amendment”). 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, 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.

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 Schedule TO, 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 to the Offer to Purchase and Consent Solicitation as Annex A. We urge you to carefully read the Articles of Amendment in its entirety. The filing of the Articles of Amendment and effectiveness of the Preferred Amendment are 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.

Following completion of the Offer and Consent Solicitation, the Securities may no longer meet the New York Stock Exchange’s 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”). The Company will pay the purchase price to you in cash for the Securities it purchases promptly after the Expiration Date and the acceptance of the Securities for purchase (the “Settlement Date”). The Company expects the Settlement Date to promptly follow the Expiration Date.

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 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 requires tenders from holders of at least two-thirds of the outstanding shares of Class N Preferred Stock (which corresponds to consents 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.

Copies of the Offer to Purchase and Consent Solicitation and Letter of Transmittal and Consent are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. The Offer and Consent Solicitation will expire at 5:00 p.m., New York City time, on December 4, 2024, unless the Offer and Consent Solicitation are extended or earlier terminated. This Schedule TO is being filed in accordance with Rule 13e-4(c)(2) and Rule 13e-3(e)(1) under the Exchange Act. The information contained in the Offer to Purchase and Consent Solicitation and the related Letter of Transmittal and Consent is hereby expressly incorporated by reference in response to all items of this Schedule TO, and as more particularly set forth below.