S-8

As filed with the Securities and Exchange Commission on May 8, 2020

Registration No. 333-

UNITED STATES
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 incorporation or organization)	(I.R.S. Employer Identification No.)

500 N. Broadway

Suite 201

Jericho, New York 11753

(Address of Principal Executive Offices) (Zip Code)

KIMCO REALTY CORPORATION 2020 EQUITY PARTICIPATION PLAN

(Full title of the plan)

Bruce M. Rubenstein

Executive Vice President, General Counsel and Secretary

Kimco Realty Corporation

500 N. Broadway

Suite 201

Jericho, New York 11753

(516) 869-9000

(Name and address of agent for service)

(Telephone number, including area code, of agent for service)

Copy to:

Joel H. Trotter

Julia A. Thompson

Latham & Watkins LLP

555 Eleventh Street N.W., Suite 1000

Washington, D.C. 20004

(202) 637-2200

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☒	Accelerated filer	☐
Non-accelerated filer	☐	Smaller reporting company	☐
		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 7(a)(2)(B) of the Securities Act. ☐

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered (1)	Proposed maximum offering price per share (2)		Proposed maximum aggregate offering price (2)		Amount of registration fee
Common Stock, $0.01 par value per share	10,000,000	$	10.25	$	102,500,000	$	13,304.50

(1) The Kimco Realty Corporation 2020 Equity Participation Plan (the “Plan”), authorizes the issuance of 10,000,000 shares of Kimco Realty Corporation’s (the “Company”) common stock, $0.01 par value per share (“Common Stock”). In accordance with Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (“Registration Statement”) shall also cover any additional shares of Common Stock that become issuable under the Plan by reason of any stock dividend, stock split, or similar transaction.

(2) Estimated in accordance with Rule 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee. The proposed maximum offering price per share is based upon the average of the high and low prices per share of Common Stock as reported on the New York Stock Exchange on May 4, 2020.

EXPLANATORY NOTE

On March 10, 2020, the Board of Directors of the Company approved the Plan, subject to the approval of the Company’s stockholders. On April 28, 2020, the Company’s stockholders approved the Plan. This Registration Statement is being filed in order to register the 10,000,000 shares of Common Stock that may be offered or sold to participants under the Plan.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.          Plan Information.

Not required to be filed with this Registration Statement.

Item 2.          Registrant Information and Employee Plan Annual Information.

Not required to be filed with this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.           Incorporation of Documents by Reference.

The following documents filed by the Company with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference in this Registration Statement: 

● the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the Commission on February 25, 2020, including the information specifically incorporated by reference into the Company’s Annual Report on Form 10-K from the Company’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 18, 2020;

● the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed with the Commission on May 8, 2020;

● the Company’s Current Reports on Form 8-K, filed with the Commission on February 25, 2020, March 2, 2020, April 3, 2020, April 24, 2020 and April 30, 2020; and

● the description of the Company’s Common Stock contained in the Company’s Registration Statement on Form S-3, filed with the Commission on February 26, 2018, including any subsequently filed amendments and reports updating such description.

All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date hereof (excluding any documents or portions of such documents that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K and any exhibits included with such Items), and prior to the filing of a post-effective amendment that indicates that all the securities offered hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.

Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4.          Description of Securities.

Not required to be filed with this Registration Statement.

Item 5.          Interests of Named Experts and Counsel.

Not applicable.

Item 6.           Indemnification of Directors and Officers.

The Maryland General Corporation Law requires a corporation (unless its charter provides otherwise, which the Company’s charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his service in that capacity. The Maryland General Corporation Law permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to or in which they may be made or threatened to be made a party or witness by reason of their service in those or other capacities unless it is established that: (a) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad faith; or (ii) was the result of active and deliberate dishonesty; (b) the director or officer actually received an improper personal benefit in money, property or services; or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification, and then only for expenses.

In addition, the Maryland General Corporation Law permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of: (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and (b) a written undertaking by the director or officer or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that he or she did not meet the standard of conduct.

The Company’s charter authorizes it, and the Company’s bylaws obligate it, to the maximum extent permitted by Maryland law and without requiring a preliminary determination as to entitlement, to indemnify any present or former director or officer of the Company or any individual who, while a director or officer of the Company and at the Company’s request, serves or has served another corporation, real-estate investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her service in that capacity, and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding.

The Company’s charter and bylaws also permit the Company, with the approval of the Company’s Board of Directors, to indemnify and advance expenses to any person who served a predecessor of the Company in any of the capacities described above and to any of the Company’s employees, agents or predecessors.

Item 7.           Exemption from Registration Claimed.

Not applicable.

Item 8.           Exhibits.

Exhibit Number	Description
4.1	Articles of Restatement of Kimco Realty Corporation, dated January 14, 2011 (incorporated by reference to Exhibit 3.1(a) of the Company’s Annual Report on Form 10-K for the year ended December 31, 2010, filed on February 28, 2011).
4.2	Amendment to Articles of Restatement of Kimco Realty Corporation, dated May 8, 2014 (incorporated by reference to Exhibit 3.1(b) of the Company’s Annual Report on Form 10-K for the year ended December 31, 2016, filed on February 27, 2017).
4.3	Articles Supplementary of Kimco Realty Corporation, dated March 12, 2012 (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form 8-A, filed on March 13, 2012).
4.4	Articles Supplementary of Kimco Realty Corporation, dated July 17, 2012 (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form 8-A, filed on July 18, 2012).
4.5	Articles Supplementary of Kimco Realty Corporation, dated November 30, 2012 (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement on Form 8-A, filed on December 3, 2012).
4.6	Articles Supplementary of Kimco Realty Corporation, dated August 8, 2017 (incorporated by reference to Exhibit 3.3 of the Company’s Registration Statement on Form 8-A, filed on August 8, 2017).
4.7	Articles Supplementary of Kimco Realty Corporation, dated December 12, 2017 (incorporated by reference to Exhibit 3.3 of the Company’s Registration Statement on Form 8-A, filed on December 12, 2017).
4.8	Amended and Restated Bylaws of Kimco Realty Corporation, dated February 25, 2009 (incorporated by reference to Exhibit 3.2 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2008, filed on February 27, 2009).
5.1	Opinion of Venable LLP.
23.1	Consent of PricewaterhouseCoopers LLP.
23.2	Consent of Venable LLP (included in Exhibit 5.1).
24.1	Power of Attorney (included on the signature page of this Registration Statement).
99.1	Kimco Realty Corporation 2020 Equity Participation Plan (incorporated by reference to Annex B to the Company’s Definitive Proxy Statement on Schedule 14A, filed on March 18, 2020).

Item 9.            Undertakings.

(a)           The undersigned registrant hereby undertakes:

(1)           To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i)            to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii)           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 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

(iii)          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;

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

(2)           That, for the purpose of determining any liability under the Securities Act of 1933, 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.

(3)           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.

(b)           The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)           Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 City of Jericho, State of New York, on the 8th day of May, 2020.

KIMCO REALTY CORPORATION
BY	/s/ Glenn G. Cohen
	Glenn G. Cohen Executive Vice President - Chief Financial Officer and Treasurer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints jointly and severally, Conor C. Flynn, Glenn G. Cohen and Bruce Rubenstein and each of them, his or her attorney-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments) and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.

Signature	Title	Date
/s/ Milton Cooper	Executive Chairman of the Board of	May 8, 2020
Milton Cooper	Directors
/s/ Conor C. Flynn	Chief Executive Officer and Director	May 8, 2020
Conor C. Flynn
/s/ Frank Lourenso	Director	May 8, 2020
Frank Lourenso
/s/ Richard Saltzman	Director	May 8, 2020
Richard Saltzman
/s/ Philip Coviello	Director	May 8, 2020
Philip Coviello
/s/ Colombe Nicholas	Director	May 8, 2020
Colombe Nicholas
/s/ Mary Hogan Preusse	Director	May 8, 2020
Mary Hogan Preusse
/s/ Valerie Richardson	Director	May 8, 2020
Valerie Richardson
/s/ Glenn G. Cohen	Executive Vice President -	May 8, 2020
Glenn G. Cohen	Chief Financial Officer and Treasurer
/s/ Paul Westbrook	Vice President -	May 8, 2020
Paul Westbrook	Chief Accounting Officer

EX-5.1

Exhibit 5.1

May 8, 2020

Kimco Realty Corporation

500 N. Broadway

Suite 201

Jericho, New York 11753

Re:     Kimco Realty Corporation – 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 relating to the registration by the Company of 10,000,000 shares (the “Shares”) of common stock, par value $0.01 per share (the “Common Stock”), of the Company issuable pursuant to the Kimco Realty Corporation 2020 Equity Participation Plan (the “Plan”) covered by the Registration Statement on Form S-8 (the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) by the Company on or about the date hereof under the Securities Act of 1933, as amended (the “1933 Act”).

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 (collectively, the “Documents”):

1.     The Registration Statement in the form in which it was transmitted to the Commission under the 1933 Act;

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

3.     The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;

4.     Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company relating to the approval of the Plan and the issuance of the Shares, 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;

Kimco Realty Corporation
May 8, 2020
Page 2

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 herein, 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 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 the obligations of such party 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.     Upon 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.

6.     The Shares will not be issued or transferred in violation of the restrictions on transfer and ownership of shares of stock of the Company set forth in Article IV of the Charter.

7.      Each option, award, restricted stock unit, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Award”) will be duly authorized and validly granted in connection with the Plan and each Award will be exercised or exchanged in accordance with the terms of the Plan and such Award, including any option or award agreement entered into in connection therewith.

Kimco Realty Corporation
May 8, 2020
Page 3

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 if issued and delivered in accordance with the Resolutions, the Plan and any other resolutions adopted by the Board or a duly authorized committee thereof relating thereto, 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 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 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 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,

/s/ Venable LLP

EX-23.1

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Kimco Realty Corporation of our report dated February 25, 2020 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting, which appears in Kimco Realty Corporation’s Annual Report on Form 10-K for the year ended December 31, 2019.

/s/PricewaterhouseCoopers LLP

New York, New York

May 8, 2020