As filed with the Securities and Exchange Commission on October 27, 2023
Registration No. 333-274926
Maryland | | | 6798 | | | 13-2744380 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification No.) |
David E. Shapiro, Esq. Steven R. Green, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 (212) 403-1000 | | | Brian L. Harper President and Chief Executive Officer RPT Realty 19 W 44th Street, Suite 1002 New York, New York 10036 (212) 221-1261 | | | Mark S. Opper, Esq. Blake Liggio, Esq. Caitlin Tompkins, Esq. Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 (617) 570-1000 |
Large accelerated filer | | | ☒ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☐ | | | Smaller reporting company | | | ☐ |
| | | | Emerging growth company | | | ☐ |
Item 20. | Indemnification of Directors and Officers |
Item 21. | Exhibits and Financial Statement Schedules |
Exhibit Number | | | Description |
| | Agreement and Plan of Merger, dated as of August 28, 2023, by and among Kimco Realty Corporation, Kimco Realty OP, LLC, Tarpon Acquisition Sub, LLC, Tarpon OP Acquisition Sub, LLC, RPT Realty and RPT Realty, L.P. (included as Annex A to the proxy statement/prospectus forming a part of this registration statement and incorporated herein by reference). | |
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| | Articles of Amendment and Restatement of Kimco Realty Corporation (incorporated by reference to Exhibit 3.1 to Kimco’s Form 8-K12B filed on January 3, 2023). | |
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| | Amended and Restated Bylaws of Kimco Realty Corporation (incorporated by reference to Exhibit 3.1 to Kimco’s Form 8-K12B filed on February 2, 2023). | |
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| | Articles of Merger (incorporated by reference to Exhibit 3.5 to Kimco’s Form 8-K12B filed on January 3, 2023). | |
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| | Form of Articles Supplementary of Kimco Realty Corporation with respect to the Class N Preferred Stock of Kimco Realty Corporation (included as Annex B to the proxy statement/prospectus forming a part of this registration statement and incorporated herein by reference). | |
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4.2* | | | Form of Deposit Agreement with respect to the Class N Preferred Stock of Kimco Realty Corporation. |
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5.1* | | | Opinion of Venable LLP. |
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| | Form of Opinion of Wachtell, Lipton, Rosen & Katz, as to certain material U.S. federal tax matters. | |
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| | Form of Opinion of Goodwin Procter LLP, as to certain material U.S. federal tax matters. | |
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| | Form of Opinion of Latham & Watkins LLP, as to the qualification of Kimco Realty Corporation as a real estate investment trust | |
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| | Form of Opinion of Goodwin Procter LLP, as to the qualification of RPT Realty as a real estate investment trust | |
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23.1* | | | Consent of Venable LLP (included in the opinion filed as Exhibit 5.1 hereto and incorporated herein by reference). |
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| | Consent of Wachtell, Lipton, Rosen & Katz (included in the opinion filed as Exhibit 8.1 hereto and incorporated herein by reference). | |
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| | Consent of Goodwin Procter LLP (included in the opinion filed as Exhibit 8.2 hereto and incorporated herein by reference). | |
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| | Consent of Independent Registered Public Accounting Firm of Kimco Realty Corporation, PricewaterhouseCoopers LLP. | |
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| | Consent of Independent Registered Public Accounting Firm of RPT Realty, Grant Thornton LLP. | |
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| | Consent of Latham & Watkins LLP (included in the opinion filed as Exhibit 8.3 hereto and incorporated herein by reference). | |
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| | Consent of Goodwin Procter LLP (included in the opinion filed as Exhibit 8.4 hereto and incorporated herein by reference). | |
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Item 22. | Undertakings |
(a) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(1) | to include any prospectus required by section 10(a)(3) of the Securities Act; |
(2) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(3) | to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(b) | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(c) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
(d) | that, for the purpose of determining liability under the Securities Act to any purchaser: |
(1) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(2) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(e) | that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(3) | any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(4) | any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(5) | the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(6) | any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(f) | that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(g) | that, prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form; |
(h) | that, every prospectus that (i) is filed pursuant to paragraph (g) immediately preceding, or (ii) purports to meet the requirements of section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to this registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(i) | insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue; |
(j) | to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request; and |
(k) | to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in this registration statement when it became effective. |
| | KIMCO REALTY CORPORATION | |||||||
| | By: | | | /s/ Glenn G. Cohen | ||||
| | | | Name: | | | Glenn G. Cohen | ||
| | | | Title: | | | Chief Financial Officer |
Signature | | | Title | | | Date |
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* | | | Chief Executive Officer and Director (Principal Executive Officer) | | | October 27, 2023 |
Conor C. Flynn | | |||||
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/s/ Glenn G. Cohen | | | Executive Vice President – Chief Financial Officer and Treasurer (Principal Financial Officer) | | | October 27, 2023 |
Glenn G. Cohen | | |||||
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* | | | Vice President – Chief Accounting Officer (Principal Accounting Officer) | | | October 27, 2023 |
Paul Westbrook | | |||||
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* | | | Executive Chairman of the Board | | | October 27, 2023 |
Milton Cooper | | |||||
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* | | | Director | | | October 27, 2023 |
Philip Coviello | | |||||
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* | | | Director | | | October 27, 2023 |
Frank Lourenso | | |||||
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* | | | Director | | | October 27, 2023 |
Henry Moniz | | |||||
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* | | | Director | | | October 27, 2023 |
Mary Hogan Preusse | | |||||
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* | | | Director | | | October 27, 2023 |
Valerie Richardson | | |||||
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* | | | Director | | | October 27, 2023 |
Richard Saltzman | |
* | | | By: | | | /s/ Glenn G. Cohen | | | |
| | Name: | | | Glenn G. Cohen | | | ||
| | Title: | | | Attorney-in-Fact | | |
Very truly yours,
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10250 Constellation Blvd., Suite 1100
Los Angeles, California 90067 Tel: +1.424.653.5500 Fax: +1.424.653.5501 www.lw.com
FIRM / AFFILIATE OFFICES
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Re:
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Kimco Realty Corporation
Registration Statement on Form S-4
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Sincerely, |
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DRAFT |
i. |
Commencing with its taxable year ended December 31, 2015, the Company has been organized in conformity with the requirements for qualification and taxation as a REIT under the Code; and
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ii. |
The Company’s prior, current and proposed ownership, organization and method of operations as described in the REIT Certificate have allowed and will continue to allow the Company to satisfy the requirements for qualification and taxation
as a REIT under the Code commencing with its taxable year ended December 31, 2015 through its taxable year ending with the Company Merger.
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Very truly yours,
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