AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 16, 2006
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
KIMCO REALTY CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 13-2744380
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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3333 NEW HYDE PARK ROAD
NEW HYDE PARK, NEW YORK 11042
(516) 869-9000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
1998 EQUITY PARTICIPATION PLAN OF KIMCO REALTY CORPORATION
(Full title of the plan)
BRUCE KAUDERER, ESQ.
GENERAL COUNSEL
KIMCO REALTY CORPORATION
3333 NEW HYDE PARK ROAD
NEW HYDE PARK, NEW YORK 11042
(516) 869-9000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
RAYMOND LIN, ESQ.
LATHAM & WATKINS LLP
885 THIRD AVENUE, SUITE 1000
NEW YORK, NEW YORK 10022
(212) 906-1200
CALCULATION OF REGISTRATION FEE
=================================== ===================== ======================= ======================= =====================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) SHARE(2) OFFERING PRICE REGISTRATION FEE
----------------------------------- --------------------- ----------------------- ----------------------- ---------------------
Common Stock, par value $0.01
per share not previously 5,000,000 $36.99 $184,950,000 $19,790
registered....................
=================================== ===================== ======================= ======================= =====================
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(1) Represents the number of additional shares of the Company's Common Stock
reserved for issuance pursuant to the Second Amendment to the Amended and
Restated 1998 Equity Participation Plan of Kimco Realty Corporation, as
approved by the Company's stockholders on May 18, 2006. Pursuant to Rule
416 under the Securities Act of 1933, as amended (the "Securities Act"),
additional shares of the Company's Common Stock, which become issuable to
prevent dilution from any future stock split, stock dividend or similar
transaction are also being registered.
(2) For purposes of computing the registration fee only. Pursuant to Rule
457(h) of the Securities Act, the Proposed Maximum Offering Price Per Share
is based upon the average of the high and low trading prices ($36.99) of
the Company's common stock as reported on the New York Stock Exchange on
June 9, 2006.
EXPLANATORY NOTE
On August 13, 1998, Kimco Realty Corporation, a Maryland corporation (the "Company") registered 9,000,000 shares of its common stock, par value $0.01 per share, ("Common Stock"), to be offered or sold to participants under the 1998 Equity Participation Plan of Kimco Realty Corporation, as amended from time to time (the "Plan") pursuant to the Registration Statement on Form S-8 (File No. 333-61323). On June 8, 2001, the Company registered an additional 9,000,000 shares of Common Stock to be offered or sold to participants under the Plan pursuant to the Registration Statement on Form S-8 (File No. 333-62626). The Second Amendment to the Amended and Restated 1998 Equity Participation Plan of Kimco Realty Corporation, as approved by the Company's stockholders on May 18, 2006, amended the Plan to increase the number of shares available for issuance under the Plan by 5,000,000 shares of Common Stock. This Registration Statement is being filed pursuant to General Instruction E to Form S-8 (Registration of Additional Securities) in order to register such additional 5,000,000 shares of Common Stock which may be offered or sold to participants under the Plan.
INCORPORATION BY REFERENCE
The contents of the Registration Statement on Form S-8 (File No. 333-62626) with respect to 9,000,000 shares of Common Stock are hereby incorporated by reference.
EXHIBITS
5.1 Opinion of Counsel.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
23.2 Consent of Goldstein Golub Kessler LLP, Independent Registered Public Accounting Firm.
23.3 Consent of Counsel (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature pages to the Registration Statement).
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of New Hyde Park, State of New York, on June 16, 2006.
KIMCO REALTY CORPORATION
By: /s/ MICHAEL V. PAPPAGALLO
------------------------------------------
Name: Michael V. Pappagallo
Title: Executive Vice President and
Chief Financial Officer
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POWER OF ATTORNEY
Each of the undersigned officers and directors of the Company hereby severally constitutes and appoints Milton Cooper and Michael V. Pappagallo as the undersigned's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for the undersigned and in the undersigned's name, place and stead, in any and all capacities (unless revoked in writing) to sign this Registration Statement on Form S-8, and any and all amendments thereto, including any post-effective amendments as well as any related registration statement (or amendment thereto) filed in reliance upon Rule 462(b) under the Securities Act, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting to such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as the undersigned might and could do in person hereby ratifying and confirming all that said attorney-in-fact and agent or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ MARTIN S. KIMMEL Director June 16, 2006
------------------------------
Martin S. Kimmel
/s/ MILTON COOPER Chairman of the Board of Directors June 16, 2006
------------------------------ and Chief Executive Officer
Milton Cooper (Principal Executive Officer)
/s/ MICHAEL J. FLYNN Vice Chairman of the Board of June 16, 2006
------------------------------ Directors, President and Chief
Michael J. Flynn Operating Officer
/s/ MICHAEL V. PAPPAGALLO Executive Vice President and Chief June 16, 2006
------------------------------ Financial Officer
Michael V. Pappagallo (Principal Financial and
Accounting Officer)
/s/ DAVID B. HENRY Vice Chairman of the Board of June 16, 2006
------------------------------ Directors and Chief Investment
David B. Henry Officer
/s/ RICHARD G. DOOLEY Director June 16, 2006
------------------------------
Richard G. Dooley
/s/ FRANK LOURENSO Director June 16, 2006
------------------------------
Frank Lourenso
/s/ JOE GRILLS Director June 16, 2006
------------------------------
Joe Grills
/s/ F. PATRICK HUGHES Director June 16, 2006
------------------------------
F. Patrick Hughes
/s/ RICHARD B. SALTZMAN Director June 16, 2006
------------------------------
Richard B. Saltzman
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
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5.1 Opinion of Counsel.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered
Public Accounting Firm.
23.2 Consent of Goldstein Golub Kessler LLP, Independent Registered
Public Accounting Firm.
23.3 Consent of Counsel (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature pages to the
Registration Statement).
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Exhibit 5.1
June 16, 2006
Kimco Realty Corporation
3333 New Hyde Park Road
P.O. Box 5020
New Hyde Park, New York 11042
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Kimco Realty Corporation, a Maryland corporation (the "Company"), in connection with certain matters of Maryland law arising out of the registration of up to 5,000,000 shares (the "Shares") of common stock, $.01 par value per share, of the Company (the "Common Stock"), issuable under the Company's 1998 Equity Incentive Plan, as amended (the "Plan"). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the "Registration Statement"), filed by the Company with the United States Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "1933 Act"). Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in the Registration Statement.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement;
2. The charter of the Company (the "Charter"), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the "SDAT");
3. The Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
Kimco Realty Corporation
June 16, 2006
5. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the adoption of the Plan and the registration and issuance of the Shares (the "Resolutions"), certified as of the date hereof by an officer of the Company;
6. The Plan;
7. A certificate executed by an officer of the Company, dated as of the date hereof; and
8. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued or transferred in violation of the restrictions on transfer and ownership contained in Article IV of the Charter.
Kimco Realty Corporation
June 16, 2006
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when and to the extent issued in accordance with the Registration Statement, the Resolutions and the Plan, the Shares will be (assuming that, upon issuance, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter) validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
VENABLE LLP
Exhibit 23.1
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 6, 2006 relating to the financial statements, financial statement schedules, management's assessment of the effectiveness of internal control over financial reporting of Kimco Realty Corporation and Subsidiaries (the "Company"), which appears in the Company's Annual Report on Form 10-K for the year ended December 31, 2005.
We also consent to the incorporation by reference in this Registration Statement of our report dated October 25, 2004 relating to the financial statements of Kimco Realty Corp. 401(k) Plan ( the "Plan") for the year ended April 30, 2004, which appears in the Annual Report of the Plan on Form 11-K for the year ended April 30, 2005.
PricewaterhouseCoopers LLP
New York, New York
June 16, 2006
Exhibit 23.2
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Kimco Realty Corporation of our report dated
October 25, 2005 relating to the financial statements of Kimco Realty Corp.
401(k) Plan, which appears in the Annual Report on Form 11-K of Kimco Realty
Corp. 401(k) Plan for the year ended April 30, 2005.
GOLDSTEIN GOLUB KESSLER LLP
NEW YORK, NEW YORK
June 16, 2006