08/22/2024 | Press release | Distributed by Public on 08/22/2024 15:28
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under §240.14a-12
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KIMCO REALTY CORPORATION
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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No fee required
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Fee paid previously with preliminary materials
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11
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Securities
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CUSIP
No. / ISIN
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Aggregate
Liquidation
Preference
Outstanding
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Liquidation
Preference Per
Security(1)
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Offer
Price
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Depositary Shares representing 1/1,000 of a Share of 7.25% Class N Cumulative Convertible Perpetual Preferred Stock of the Company
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49446R 687/
US49446R6870
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$92,422,950
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$50.00
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$ per Security(2)
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(1)
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As used herein, the term "Liquidation Preference" for a Security means an amount equal to the product of the liquidation preference for a share of Class N Preferred Stock ($50,000.00 per share) and the fractional interest in such share of Class N Preferred Stock that such Security represents (1/1,000). For each Security, the Liquidation Preference is $50.00 plus accrued and unpaid dividends, if any, per Security.
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(2)
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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 (as defined below).
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general adverse economic and local real estate conditions;
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the impact of competition, including the availability of acquisition or development opportunities and the costs associated with purchasing and maintaining assets;
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the inability of major tenants to continue paying their rent obligations due to bankruptcy, insolvency or a general downturn in their business;
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the reduction in the Company's income in the event of multiple lease terminations by tenants or a failure of multiple tenants to occupy their premises in a shopping center;
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the potential impact of e-commerce and other changes in consumer buying practices, and changing trends in the retail industry and perceptions by retailers or shoppers, including safety and convenience;
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the availability of suitable acquisition, disposition, development and redevelopment opportunities, and the costs associated with purchasing and maintaining assets and risks related to acquisitions not performing in accordance with our expectations;
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the Company's ability to raise capital by selling its assets;
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disruptions and increases in operating costs due to inflation and supply chain disruptions;
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risks associated with the development of mixed-use commercial properties, including risks associated with the development, and ownership of non-retail real estate;
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changes in governmental laws and regulations, including, but not limited to, changes in data privacy, environmental (including climate change), safety and health laws, and management's ability to estimate the impact of such changes;
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the Company's failure to realize the expected benefits of the RPT Merger;
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significant transaction costs and/or unknown or inestimable liabilities related to the RPT Merger;
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the risk of litigation, including shareholder litigation, in connection with the RPT Merger, including any resulting expense;
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the ability to successfully integrate the operations of the Company and RPT and the risk that such integration may be more difficult, time-consuming or costly than expected;
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risks related to future opportunities and plans for the combined company, including the uncertainty of expected future financial performance and results of the combined company;
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effects relating to the RPT Merger on relationships with tenants, employees, joint venture partners and third parties;
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the possibility that, if the Company does not achieve the perceived benefits of the RPT Merger as rapidly or to the extent anticipated by financial analysts or investors, the market price of the Common Stock could decline;
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valuation and risks related to the Company's joint venture and preferred equity investments and other investments;
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valuation of marketable securities;
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impairment charges;
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criminal cybersecurity attacks disruption, data loss or other security incidents and breaches;
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risks related to artificial intelligence;
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impact of natural disasters and weather and climate-related events;
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pandemics or other health crises, such as coronavirus disease;
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our ability to attract, retain and motivate key personnel;
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financing risks, such as the inability to obtain equity, debt or other sources of financing or refinancing on favorable terms to the Company;
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the level and volatility of interest rates and management's ability to estimate the impact thereof;
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changes in the dividend policy for the Company's common and preferred stock and the Company's ability to pay dividends at current levels;
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unanticipated changes in the Company's intention or ability to prepay certain debt prior to maturity and/or hold certain securities until maturity; and
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the Company's ability to continue to maintain its status as a REIT (as defined below) for U.S. federal income tax purposes and potential risks and uncertainties in connection with its UPREIT (as defined below) structure.
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Page
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IMPORTANT
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i
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
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ii
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SUMMARY TERM SHEET
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1
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SPECIAL FACTORS
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9
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Section 1.
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Purpose of and Reasons for the Offer and Consent Solicitation.
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9
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Section 2.
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Certain Effects of the Offer and Consent Solicitation.
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10
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Section 3.
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Fairness of the Offer and Consent Solicitation.
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13
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Section 4.
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Plans of the Company After the Offer and Consent Solicitation.
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16
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THE OFFER AND CONSENT SOLICITATION
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18
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Section 5.
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General.
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18
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Section 6.
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Procedures for Tendering the Securities.
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19
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Section 7.
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Withdrawal Rights.
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22
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Section 8.
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Purchase of Securities and Payment of Purchase Price.
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22
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Section 9.
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Conditions of the Offer and Consent Solicitation.
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23
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Section 10.
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Historical Price Range of the Securities.
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24
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Section 11.
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Source and Amount of Funds.
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26
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Section 12.
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Certain Information Concerning the Company.
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26
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Section 13.
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Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Securities and the Common Stock.
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27
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Section 14.
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Legal Matters; Regulatory Approvals.
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28
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Section 15.
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Certain U.S. Federal Income Tax Consequences of the Offer.
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28
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Section 16.
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Extension of the Offer and Consent Solicitation; Termination; Amendment.
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35
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Section 17.
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Fees and Expenses.
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36
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Section 18.
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Rule 14e-4 "Net Long Position" Requirement.
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37
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Section 19.
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Where You Can Find Additional Information.
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37
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Section 20.
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Miscellaneous.
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38
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SCHEDULE I
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I-1
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ANNEX A
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A-1
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ANNEX B
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B-1
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Securities
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Liquidation
Preference
Per
Security
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Offer Price
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Depositary Shares representing 1/1,000 of a Share of 7.25% Class N Cumulative Convertible Perpetual Preferred Stock (NYSE: KIMprN)
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$50.00
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$ per Security, 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
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Section 1.
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Purpose of and Reasons for the Offer and Consent Solicitation.
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Section 2.
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Certain Effects of the Offer and Consent Solicitation.
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Section 3.
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Fairness of the Offer and Consent Solicitation.
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that the Offer Price of $ was based on price discovery efforts conducted by the Company to determine indicative levels of interest in the Offer;
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that the Offer Price represents a % premium as compared to the trailing 30-day volume weighted average price of the Securities on NYSE ending as of , 2024;
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that the Offer Price represents a % premium as compared to the trailing 60-day volume weighted average price of the Securities on NYSE ending as of , 2024;
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that the Offer Price represents a % premium as compared to the $50.00 per share liquidation preference of the Securities;
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the minimal trading volumes of the Securities;
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the current exchange ratio of 2.3071 shares of Common Stock for each Security, which, based on the closing price of our Common Stock on the NYSE on August 21, 2024 of $22.80 per share, results in a conversion value of $52.60 per Security;
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the year-to-date historical trading yields and prices of the Securities in relation to various developments in the Company's business and in comparison to certain selected market indices;
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the implied yield for the Securities based on the Offer Price relative to preferred yields for the Depositary Shares representing one one-thousandth of a share of 5.125% Class L Cumulative Redeemable Preferred Stock and the Depositary Shares representing one one-thousandth of a share of 5.250% Class M Cumulative Redeemable Preferred Stock, as well as selected public REITs that have certain characteristics in common with the Company;
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that the Offer and Consent Solicitation will provide cash consideration to, and immediate liquidity for, the holders of Securities, whose ability to sell their Securities is currently adversely affected by the minimal trading volume of the Securities on the NYSE; and
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that participation in the Offer and Consent Solicitation is a voluntary transaction in which each holder of Securities can determine individually whether to accept the Offer and Consent Solicitation.
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all holders of Securities are offered the same consideration per Security;
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holders of Securities are offered a premium to the market price of the Securities;
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holders of Securities are provided with full disclosure of the terms and conditions of the Offer; and
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holders of Securities are afforded sufficient time to consider the Offer.
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Section 4.
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Plans of the Company After the Offer and Consent Solicitation.
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any extraordinary transaction, such as a merger, reorganization or liquidation, involving us or any of our subsidiaries;
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any purchase, sale or transfer of an amount of our assets or any of our subsidiaries' assets which is material to us and our subsidiaries, taken as a whole;
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any material change in our present dividend rate or policy, our indebtedness or capitalization;
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any material change in our present Board of Directors or management or any plans or proposals to change the number or the terms of directors (although we may fill vacancies arising on the Board of Directors) or to change any material term of the employment contract of any executive officer;
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any material change in our corporate structure or business;
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any class of our equity securities to be delisted from the NYSE;
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any class of our equity securities becoming eligible for termination of registration under section 12(g)(4) of the Exchange Act (except to the extent the results of the Offer and Consent Solicitation impact such eligibility with respect to the Securities);
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the termination or suspension of our obligation to file reports under Section 15(d) of the Exchange Act;
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the acquisition or disposition by any person of our securities; or
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any changes in our Charter, bylaws or other governing instruments or other actions that could impede the acquisition of control of us.
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Section 5.
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General.
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Series of Securities
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CUSIP
No. / ISIN
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Liquidation
Preference Per
Security
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Offer
Price
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Depositary Shares representing 1/1,000 of a Share of 7.25% Class N Cumulative Convertible Perpetual Preferred Stock
(NYSE: KIMprN)
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49446R 687/
US49446R6870
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$50.00
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$ per Security, plus accrued and unpaid dividends, if any, through the day before the Settlement Date
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Section 6.
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Procedures for Tendering the Securities.
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the Letter of Transmittal and Consent is signed by the registered holder (which term, for purposes of this Section 6, shall include any participant in DTC whose name appears on a security position listing as the owner of the Securities) of the Securities tendered therewith and the holder has not completed either of the boxes under "Special Payment and Delivery Instructions" within the Letter of Transmittal and Consent; or
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the Securities are tendered for the account of a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of the Securities Transfer Agents Medallion Program or a bank, broker, dealer, credit union, savings association or other entity which is an "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Exchange Act. See Instruction 1 of the Letter of Transmittal and Consent.
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a message that has been transmitted to the Tender Agent through the facilities of DTC, or
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a properly completed and duly executed Letter of Transmittal and Consent, including any other required documents, that has been transmitted to and received by the Tender Agent at its address as set forth on the back page of this Offer to Purchase and Consent Solicitation before the Expiration Date.
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Section 7.
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Withdrawal Rights.
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Section 8.
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Purchase of Securities and Payment of Purchase Price.
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Section 9.
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Conditions of the Offer and Consent Solicitation.
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there shall have been threatened, instituted or pending any action or proceeding by any government or governmental, regulatory or administrative agency or instrumentality, authority or tribunal or any other person, domestic or foreign, before any court, authority, agency or tribunal that directly or indirectly challenges the making of the Offer and Consent Solicitation, the acquisition of some or all of the Securities under the Offer and Consent Solicitation or otherwise relates in any manner to the Offer and Consent Solicitation, or is, or is reasonably likely to be, in our reasonable judgment, materially adverse to our business, operations, properties, condition, assets, liabilities or prospects, or which would or might, in our reasonable judgment, prohibit, prevent, restrict or delay consummation of the Offer and Consent Solicitation or materially impair the contemplated benefits to the Company of the Offer and Consent Solicitation;
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there shall have been any action threatened, instituted, pending or taken, or approval withheld, or any statute, rule, regulation, judgment, order or injunction threatened, proposed, sought, promulgated, enacted, entered, amended, enforced or deemed to be applicable to the Offer and Consent Solicitation or the Company or any of its subsidiaries, by any court or any authority, agency, tribunal or other body that, in the Company's reasonable judgment, would or might, directly or indirectly:
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make the acceptance for purchase of, or payment for, some or all of the Securities illegal or otherwise restrict or prohibit completion of the Offer and Consent Solicitation; or
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delay or restrict the ability of the Company, or render the Company unable, to accept for purchase or pay for some or all of the Securities; or
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in the Company's reasonable judgment, there has occurred any of the following:
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any general suspension of trading in, or the imposition of any general curb on trading of securities on any U.S. national securities exchange or in the over-the-counter market;
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o any decrease of more than 10% in the market price for any of the Company's securities on the NYSE or in the general level of market prices for equity securities in the Dow Jones Industrial Average, New York Stock Exchange Index, NASDAQ Composite Index or the Standard & Poor's 500 Composite Index measured from the close of trading on , 2024 shall have occurred;
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the payment of the funds in the Tender Offer would be prohibited by law;
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the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, whether or not mandatory;
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the commencement of any war, armed hostilities or other international calamity, including any act of terrorism, on or after the date of this Offer to Purchase and Consent Solicitation, in or involving the
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any limitation, whether or not mandatory, imposed by any governmental, regulatory, self-regulatory or administrative authority, tribunal or other body, or any other event, that could materially affect the extension of credit by banks or other lending institutions in the United States;
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any change in tax law that would materially change the tax consequences of the Offer and Consent Solicitation in a manner that would reasonably be expected to have a material and adverse effect on the Company; or
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any change or changes have occurred or likely to occur affecting the Company or any of its subsidiaries' business or financial affairs that, in our reasonable judgment, (i) is, or is reasonably likely to be, materially adverse to the Company and its subsidiaries' business, condition (financial or otherwise), income, assets, liabilities, operations, property or prospects, (ii) would or might prohibit, prevent, restrict or delay consummation of the Offer and Consent Solicitation, or (iii) would materially impair the contemplated benefits of the Offer and Consent Solicitation to the Company or be material to holders of Securities in deciding whether to accept the Offer and consent to the Preferred Amendment.
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Section 10.
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Historical Price Range of the Securities.
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Securities
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Cash Distributions
per Security
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High
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Low
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Fiscal Year Ending December 31, 2024
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Third Quarter (through August 21, 2024)
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$58.51
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$53.85
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$0.90625
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Second Quarter
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56.44
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53.29
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0.90625
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First Quarter (beginning January 2, 2024)
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58.00
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55.87
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0.14097
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Section 11.
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Source and Amount of Funds.
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Covenant
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Must Be
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As of
June 30, 2024
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Total Indebtedness to Gross Asset Value ("GAV")
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<60%
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35%
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Total Priority Indebtedness to GAV
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<35%
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1%
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Unencumbered Asset Net Operating Income to Total Unsecured Interest Expense
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>1.75x
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4.5x
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Fixed Charge Total Adjusted EBITDA to Total Debt Service
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>1.50x
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4.0x
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Section 12.
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Certain Information Concerning the Company.
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increasing the value of our existing portfolio of properties and generating higher levels of portfolio growth;
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increasing cash flows for reinvestment and/or for distribution to stockholders while maintaining conservative payout ratios;
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improving debt metrics and obtaining upgraded unsecured debt ratings;
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continuing growth in desirable demographic areas with successful retailers, primarily focused on grocery anchors; and
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increasing the number of entitlements for residential use.
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Section 13.
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Interests of Directors and Executive Officers; Transactions and Arrangements Concerning the Securities and the Common Stock.
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Section 14.
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Legal Matters; Regulatory Approvals.
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Section 15.
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Certain U.S. Federal Income Tax Consequences of the Offer.
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•
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U.S. expatriates and former citizens or long-term residents of the United States;
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U.S. Holders whose functional currency is not the U.S. dollar;
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persons holding our Securities as part of a hedge, straddle, or other risk reduction strategy or as part of a conversion transaction or other integrated investment;
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banks, insurance companies, and other financial institutions;
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REITs or regulated investment companies;
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brokers, dealers, or traders in securities;
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"controlled foreign corporations," "passive foreign investment companies," and corporations that accumulate earnings to avoid U.S. federal income tax;
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S corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);
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tax-exempt organizations or governmental organizations;
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persons subject to special tax accounting rules as a result of any item of gross income with respect to our Securities being taken into account in an applicable financial statement;
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persons deemed to sell our Securities under the constructive sale provisions of the Code;
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persons who hold or receive our Securities pursuant to the exercise of any employee stock option or otherwise as compensation; and
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tax-qualified retirement plans.
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an individual who is a citizen or resident of the United States;
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a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
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a trust if it (1) is subject to the primary supervision of a U.S. court and the control of one or more "United States persons" (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect under applicable Treasury regulations to be treated as a United States person for U.S. federal income tax purposes.
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(1)
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the Securities are "regularly traded," as defined by applicable Treasury Regulations, on an established securities market such as the NYSE; and
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(2)
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such Non-U.S. Holder owned, actually and constructively, 10% or less of the Securities throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the Non-U.S. Holder's holding period.
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(1)
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the investment in the Securities is treated as effectively connected with the conduct by the Non-U.S. Holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the Non-U.S. Holder maintains a permanent establishment in the United States to which such dividends are attributable), in which case the Non-U.S. Holder will be subject to the same treatment as U.S. Holders with respect to such gain, except that a Non-U.S. Holder that is a corporation may also be subject to a branch profits tax of up to 30%, as discussed above; or
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(2)
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the Non-U.S. Holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the Non-U.S. Holder will be subject to U.S. federal income tax at a rate of 30% on the Non-U.S. Holder's capital gains (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of such Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.
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Section 16.
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Extension of the Offer and Consent Solicitation; Termination; Amendment.
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the Company increases or decreases (i) the price to be paid for the Securities or (ii) the Soliciting Broker Fee, and
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the Offer and Consent Solicitation is scheduled to expire at any time earlier than the expiration of a period ending on the tenth business day from, and including, the date that the notice of an increase or decrease is first published, sent or given to securityholders in the manner specified in this Section 16,
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Section 17.
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Fees and Expenses.
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Section 18.
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Rule 14e-4 "Net Long Position" Requirement.
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Section 19.
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Where You Can Find Additional Information.
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•
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Kimco Realty Corporation's and Kimco OP's Annual Report on Form 10-K for the year ended December 31, 2023 (filed with the SEC on February 26, 2024);
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The information specifically incorporated by reference into Kimco Realty Corporation's and Kimco OP's Annual Report on Form 10-K for the year ended December 31, 2023 from Kimco Realty Corporation's Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 25, 2024;
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•
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Kimco Realty Corporation's and Kimco OP's Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2024 (filed with the SEC on May 3, 2024, as amended on May 13, 2024) and June 30, 2024 (filed with the SEC on August 2, 2024); and
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•
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Kimco Realty Corporation's and Kimco OP's Current Reports on Form 8-K filed with the SEC on January 3, 2024 (excluding the information furnished pursuant to Item 7.01 and the related exhibits), February 8, 2024, May 9, 2024 and July 19, 2024 (excluding the information furnished pursuant to Item 7.01 and the related exhibit).
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Section 20.
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Miscellaneous.
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1.
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Directors and Executive Officers of the Company
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Name
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Position with the Company
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Milton Cooper
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Executive Chairman of the Board of Directors
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Conor C. Flynn
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Chief Executive Officer and Director
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Philip E. Coviello
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Director
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Frank Lourenso
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Director
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Henry Moniz
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Director
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Mary Hogan Preusse
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Director
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Valerie Richardson
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Director
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Richard B. Saltzman
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Director
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Glenn G. Cohen
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Executive Vice President and Chief Financial Officer
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Ross Cooper
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President and Chief Investment Officer
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David Jamieson
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Executive Vice President and Chief Operating Officer
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(A)
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The Class N Preferred Stock may be redeemed for cash, in whole or from time to time in part, on any date on or before , 2025 (the "Class N Redemption End Date"), at the option of the Corporation at a price per share equal to $ plus accrued and unpaid dividends thereon, if any, to, but excluding, the Class N Redemption Date (as defined below), and as adjusted in Subsection 9(B) below (the "Class N Redemption Price"). Following the Class N Redemption End Date, the Class N Preferred Stock shall not be redeemable by the Corporation. Subject to applicable law, the Corporation may purchase shares of Class N Preferred Stock in the open market, by tender or by private agreement.
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(B)
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Each date fixed for redemption pursuant to Subsection (A) of this Section 9 is called a "Class N Redemption Date." If the Class N Redemption Date is after the Dividend Record Date and before the related Dividend Payment Date, the dividend payable on such Dividend Payment Date shall be paid to the holder in whose name the Class N Preferred Stock to be redeemed is registered at the close of business on such Dividend Record Date notwithstanding the redemption thereof between such Dividend Record Date and the related Dividend Payment Date or the Corporation's default in the payment of the dividend due, and the Class N Redemption Price shall not include the amount of such dividend payable on such Dividend Payment Date.
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(C)
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In case of redemption of less than all shares of Class N Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation pro rata from the holders of record of such shares in proportion to the number of shares held by such holders (with adjustments to avoid redemption of fractional shares) or by any other equitable method prescribed by the Board of Directors that will not result in the issuance of any Class N Excess Preferred Stock.
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(D)
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In order to exercise its redemption option, the Corporation shall give written notice ("Class N Notice") of such redemption to each holder of record of the shares of Class N preferred Stock to be redeemed not less than 30 days or more than 60 days prior to the Class N Redemption Date. The Class N Notice will be mailed by the Corporation, postage prepaid, addressed to the respective holders of record of the Class N Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. The Class N Notice may be contingent on the occurrence of a future event. No failure to give Class N Notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any shares of Class N Preferred Stock, except as to any holder to whom the Corporation has failed to give the Class N Notice or except as to any holder to whom the Class N Notice was defective. In addition to any information required by law or by the applicable rules of any exchange upon which Class N Preferred Stock may be listed or admitted to trading, such Class N Notice shall state (i) the Class N Redemption Date; (ii) the Class N Redemption Price; (iii) the number of shares of Class N Preferred Stock to be
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(E)
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The Class N Notice having been mailed in accordance with Subsection (D) of this Section 9, from and after the Class N Redemption Date (unless the Corporation shall fail to make available an amount of cash necessary to pay the Class N Redemption Price), (i) except as otherwise provided herein, dividends on the shares of Class N Preferred Stock so called for redemption shall cease to accrue, (ii) said shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Class N Preferred Stock shall cease (except the right to receive the Class N Redemption Price in cash). The Corporation's obligation to provide cash in accordance with the preceding sentence shall be deemed fulfilled if, on or before the Class N Redemption Date, the Corporation shall deposit with a bank or trust company (which may be an affiliate of the Corporation), cash necessary for such redemption, in trust, with irrevocable instructions that such cash be applied to the redemption of the shares of Class N Preferred Stock so called for redemption. In this case, the Corporation's Class N Notice shall (i) specify the office of such bank or trust company as the place of payment of the Class N Redemption Price and (ii) call upon respective holders of record of the Class N Preferred Stock to surrender certificates for such shares, on the Class N Redemption Date fixed in the Class N Notice, for payment of the Class N Redemption Price. No interest shall accrue for the benefit of any holder of shares of Class N Preferred Stock to be redeemed on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of two years from the Class N Redemption Date shall revert to the general funds of the Corporation, after which reversion, the holders of such shares so called for redemption shall look only to the general funds of the Corporation for the payment of such cash.
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(F)
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As promptly as practicable after the surrender of the certificates for any such shares of Class N Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and if the Class N Notice shall so state) in accordance with said Class N Notice, the Corporation (or the related bank or trust company, if applicable) shall pay to the applicable holders the Class N Redemption Price in cash (without interest thereon). In the event of the redemption of less than all shares of Class N Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation pro rata from the holders of record of such shares in proportion to the number of shares held by such holders (with adjustments to avoid redemption of fractional shares) or by any other equitable method determined by the Board of Directors that will not result in the issuance of any Class N Excess Preferred Stock. If fewer than all the shares of Class N Preferred Stock represented by any certificate are redeemed, then new certificates representing the unredeemed shares of Class N Preferred Stock shall be issued without cost to the holder thereof.
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(G)
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Unless full cumulative dividends on all outstanding shares of Class N Preferred Stock shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods, (i) no shares of any Class N Preferred Stock shall be redeemed, unless all outstanding shares of Class N Preferred Stock are simultaneously redeemed and (ii) the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Class N Preferred Stock (except by conversion into or exchange for Junior Stock); provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of Class N Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holder of all outstanding shares of Class N Preferred Stock.
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(H)
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All shares of Class N Preferred Stock redeemed pursuant to this Section 9, or otherwise acquired by the Corporation, shall be retired and shall be reclassified as authorized and unissued shares of Preferred Stock, without designation as to class or series, and may thereafter be reissued as shares of any class or series of Preferred Stock.
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ATTEST:
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KIMCO REALTY CORPORATION
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By:
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(SEAL)
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Name:
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Kathleen M. Gazerro
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Name:
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Glenn G. Cohen
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Title:
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Assistant Secretary
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Title:
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Executive Vice President and
Chief Financial Officer
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TABLE OF CONTENTS
1.
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A new Section 2.12 shall be added as follows:
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2.
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The Authorized Officers may approve such additional amendments to the Deposit Agreement, including revisions to the foregoing Section 2.12, as any of the Authorized Officers deems advisable, including as is required by the Depositary.
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