UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported) January 3, 2023

KIMCO REALTY CORPORATION
KIMCO REALTY OP, LLC
(Exact name of registrant as specified in its charter)

Maryland (Kimco Realty Corporation)
  
1-10899
  
13-2744380
Delaware (Kimco Realty OP, LLC)
  
333-269102-01
  
92-1489725
(State or other jurisdiction
of incorporation)
  
(Commission File Number)
  
(IRS Employer
Identification No.)

500 N. Broadway
Suite 201
Jericho, NY 11753
(Address of principal executive offices) (Zip Code)
Registrants’ telephone number, including area code: (516) 869-9000

Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Kimco Realty Corporation

Title of each class
  
Trading Symbol(s)
  
Name of each exchange on which registered
Common Stock, par value $.01 per share.
  
KIM
  
New York Stock Exchange
Depositary Shares, each representing one-thousandth of a share of 5.125% Class L Cumulative Redeemable, Preferred Stock, $1.00 par value per share.
  
KIMprL
  
New York Stock Exchange
Depositary Shares, each representing one-thousandth of a share of 5.250% Class M Cumulative Redeemable, Preferred Stock, $1.00 par value per share.
  
KIMprM
  
New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 8.01
Other Events.

On January 3, 2023, Kimco Realty Corporation, a Maryland corporation (the “Company”), and Kimco Realty OP, LLC, a Delaware limited liability company, filed an automatic shelf registration statement on Form S-3 (File No. 333-269102) (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”).

In addition, on January 3, 2023, the Company filed with the SEC a prospectus supplement to the prospectus included in the Registration Statement relating to 1,000,000 shares of common stock, par value $0.01, of the Company (the “Common Stock”), that may be offered pursuant to the Company’s Dividend Reinvestment and Direct Stock Purchase Plan (the “DRIP Prospectus Supplement”).  The Company also filed with the SEC a prospectus supplement to the prospectus included in the Registration Statement relating to the possible issuance by the Company from time to time of up to an aggregate of 1,841,273 shares of Common Stock in exchange for limited partnership units in WRI Madison Village LP (“Madison Village LP”) (formerly known as Markham West Shopping Center, L.P.) and WRI/Raleigh LP (“Raleigh LP”), in each case upon tender of such units for redemption for shares of Common Stock by holders of the units (the “DownREIT Prospectus Supplement”). Both Madison Village LP and Raleigh LP are real estate ventures structured as DownREIT partnerships of the Company.

The Company is registering shares of Common Stock being offered by the DownREIT Prospectus Supplement in order to permit the recipient thereof to sell such shares without restriction, in the open market or otherwise; however, the registration of shares of Common Stock does not necessarily mean that any of the units will be submitted for redemption for shares of Common Stock, that the Company, through the applicable general partner, will elect to cause the redemption of the units for shares of Common Stock instead of cash, or that any shares of the Common Stock to be issued upon such redemption will be offered or sold by the recipient thereof.

On January 3, 2023, Venable LLP delivered legality opinions in connection with the filing of each of the DRIP Prospectus Supplement and the DownREIT Prospectus Supplement, which are attached hereto as Exhibits 5.1 and 5.2, respectively.

Item 9.01
Financial Statements and Exhibits.

(d)   Exhibits

Exhibit No.
  
Description
 
Opinion of Venable LLP, dated January 3, 2023, as to the legality of the common stock, par value $0.01 per share.
 
Opinion of Venable LLP, dated January 3, 2023, as to the legality of the common stock, par value $0.01 per share.
 
Consent of Venable LLP (contained in the opinion filed as Exhibit 5.1).
 
Consent of Venable LLP (contained in the opinion filed as Exhibit 5.2).
104
  
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized.

        
      
KIMCO REALTY CORPORATION
      
Date: January 3, 2023
/s/ Glenn G. Cohen
      
Glenn G. Cohen
      
Executive Vice President, Chief Financial Officer and Treasurer

      
KIMCO REALTY OP, LLC
      
      
/s/ Glenn G. Cohen
      
Glenn G. Cohen
      
Executive Vice President, Chief Financial Officer and Treasurer

Exhibit 5.1

January 3, 2023

Kimco Realty Corporation
500 North Broadway, Suite 201
Jericho, New York 11753


 Re:
Registration Statement on Form S-3

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 1,000,000 shares (the “Shares”) of common stock, $0.01 par value per share (the “Common Stock”), of the Company, covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).  The Shares may be issued from time to time pursuant to the Company’s Dividend Reinvestment and Direct Stock Purchase Plan (the “Plan”).

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 Prospectus Supplement, dated as of the date hereof, relating to the issuance of the Shares pursuant to the Plan, in the form in which it was transmitted to the Commission for filing under the 1933 Act;


3.
The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);


4.
The Bylaws of the Company, certified as of the date hereof by an officer of the Company;


5.
The Plan;


6.
A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;


7.
Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company and a duly authorized committee thereof, relating to the Plan and the issuance of the Shares, certified as of the date hereof by an officer of the Company;


8.
A certificate executed by an officer of the Company, dated as of the date hereof; and


9.
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.
Kimco Realty Corporation
January 3, 2023
Page 2

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 another 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 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 any restriction or limitation contained in Article IV of the Charter.

6.          Upon the issuance of any of the Shares, 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.

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 validly 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 if issued and delivered in accordance with the Resolutions and the Plan, the Shares will be 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 federal law or any other state law.  We express no opinion as to the applicability or effect of 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 the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.  The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
Kimco Realty Corporation
January 3, 2023
Page 3

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 Company’s Current Report on Form 8-K relating to the Plan (the “Current Report”).  We hereby consent to the filing of this opinion as an exhibit to the Current Report 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,
   
 
/s/ Venable LLP

Exhibit 5.2


January 3, 2023

Kimco Realty Corporation
500 North Broadway, Suite 201
Jericho, New York 11753


 Re:
Registration Statement on Form S-3

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 1,841,273 shares (the “Shares”) of common stock, $0.01 par value per share (the “Common Stock”), of the Company, covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).  The Shares may be issued from time to time pursuant to the Agreement and Plan of Merger, dated as of April 15, 2021 (the “Merger Agreement”), by and between Kimco Realty Corporation, a Maryland corporation, and Weingarten Realty Investors, a Texas real estate investment trust and the applicable Partnership Agreement (as defined below).

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 Prospectus Supplement, dated as of the date hereof, relating to the issuance of the Shares pursuant to the Merger Agreement, in the form in which it was transmitted to the Commission for filing under the 1933 Act;

3.          The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

4.          The Bylaws of the Company, certified as of the date hereof by an officer of the Company;

5.          The Merger Agreement;

6.          The Agreement of Limited Partnership of WRI/Raleigh LP, dated as of March 25, 2002 (the “Raleigh Partnership Agreement”), among Weingarten Nostat, Inc., a Texas corporation (“Weingarten Nostat”), as general partner, and the persons listed on Exhibit A thereto, as limited partners;

7.          The Amended and Restated Agreement of Limited Partnership of WRI Madison Village LP (formerly known as Markham West Shopping Center, L.P.), dated as of September 18, 1998 (the “Madison Village Partnership Agreement” and, together with the Raleigh Partnership Agreement, the “Partnership Agreements”), among Weingarten Nostat, as general partner, and the persons named therein, as limited partners;

8.          A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

9.          Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company, relating to the issuance of the Shares, certified as of the date hereof by an officer of the Company;

10.          A certificate executed by an officer of the Company, dated as of the date hereof; and

11.          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.
Kimco Realty Corporation
January 3, 2023
Page 2

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 another 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 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 any restriction or limitation contained in Article IV of the Charter.

6.          Upon the issuance of any of the Shares, 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.

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 validly 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 if issued and delivered in accordance with the Resolutions, the Merger Agreement and the applicable Partnership Agreement, the Shares will be 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 federal law or any other state law.  We express no opinion as to the applicability or effect of 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 the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.  The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
Kimco Realty Corporation
January 3, 2023
Page 3

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 Company’s Current Report on Form 8-K relating to the registration of the Shares (the “Current Report”).  We hereby consent to the filing of this opinion as an exhibit to the Current Report 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,
   
 
/s/  Venable LLP