This Amendment No. 1 (the “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (as amended and supplemented, the “Schedule TO”) filed with the Securities and Exchange Commission (“SEC”) by Kimco Realty Corporation, a Maryland corporation (the “Company”), on November 4, 2024 in connection with an offer by the Company to purchase for cash all of its outstanding depositary shares (each a “Security” and, collectively, the “Securities”) 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 (the “Class N Preferred Stock”), upon the terms and subject to the conditions set forth in the Offer to Purchase and Consent Solicitation, dated November 4, 2024 (as 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 of $62.00, plus any accrued and unpaid dividends. Copies of the Offer to Purchase and Consent Solicitation and Letter of Transmittal and Consent were filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
This Amendment is being filed solely in connection with (i) the Company’s waiver of the condition for the receipt of the Requisite Preferred Shareholder Consents described in the Offer to Purchase and Consent Solicitation, which conditioned the Offer and the Consent Solicitation upon the tender of at least two-thirds of the outstanding Securities (which represent two-thirds of the outstanding shares of the Class N Preferred Stock), and (ii) an extension of the Offer and Consent Solicitation from 5:00 p.m., New York City time, on December 4, 2024 until 5:00 p.m., New York City time, on December 12, 2024 (unless further extended or earlier terminated). The Company hereby waives the condition for the receipt of the Requisite Preferred Shareholder Consents.
For the avoidance of doubt, if the Requisite Preferred Shareholder Consents are not obtained, the Company will not solicit consents from the holders of the Company’s common stock, the Preferred Amendment will not be effectuated, and the Company will not have the option to redeem any shares of the Class N Preferred Stock (or, consequently, the Securities).
As of December 5, 2024, 521,991 Securities have been tendered for purchase in the Offer. You may withdraw any Securities you have tendered at any time before the new Expiration Date. As set forth in the Offer to Purchase, the Company will delay the acceptance for purchase of any and all of your validly tendered and not properly withdrawn Securities until the new Expiration Date.
Only those items amended or supplemented are reported in this Amendment. Except as specifically provided herein, the information contained in the Schedule TO remains unchanged and this Amendment does not modify any of the information previously reported on the Schedule TO. All capitalized terms in this Amendment and not otherwise defined have the respective meanings ascribed to them in the Schedule TO. You should read this Amendment together with the Schedule TO, the Offer to Purchase and the related Letter of Transmittal and Consent.
ITEMS 1-11 and ITEM 13.
Amendments to the Offer to Purchase, the Letter of Transmittal and Consent, and Other Exhibits to the Schedule TO
1.
| References to 5:00 p.m., New York City time, on December 4, 2024 in the Offer to Purchase, the Letter of Transmittal and Consent, and the other exhibits to the Schedule TO, including as the definition of “Expiration Date,” are hereby amended and replaced with 5:00 p.m., New York City Time, on December 12, 2024, so that the new Expiration Date of the Offer is now 5:00 p.m., New York City Time, on December 12, 2024 (as it may be further extended or earlier terminated). |
2.
| References to the Offer and Consent Solicitation being conditioned upon receipt of the Requisite Preferred Shareholder Consents, including in Section 9 of the Offer to Purchase and Consent Solicitation, “Conditions to the Offer and Consent Solicitation”, are hereby removed. |
3.
| “Fairness of the Offer and Consent Solicitation – Approval from Holders of Securities” is hereby revised to replace the first four sentences of the first paragraph of such section with the following: |
“Because the Offer and Consent Solicitation are no longer conditioned upon receipt of the Requisite Preferred Shareholder Consents, the Offer and Consent Solicitation are no longer conditioned upon the approval of at least a majority of the unaffiliated holders of the Securities. We continue to believe that the Offer would be procedurally fair and substantively fair to the unaffiliated holders of Securities.”