<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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)
------------------------
<TABLE>
<S> <C>
MARYLAND 13-2744380
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
3333 NEW HYDE PARK ROAD 11042
NEW HYDE PARK, NEW YORK (ZIP CODE)
(ADDRESS OF PRINCIPAL
EXECUTIVE OFFICES)
</TABLE>
------------------------
1998 EQUITY PARTICIPATION PLAN OF KIMCO REALTY CORPORATION
(FULL TITLE OF THE PLAN)
------------------------
<TABLE>
<S> <C>
Copy to:
BRUCE KAUDERER, ESQ. RAYMOND Y. LIN, ESQ.
GENERAL COUNSEL LATHAM & WATKINS
3333 NEW HYDE PARK ROAD 885 THIRD AVENUE
NEW HYDE PARK, NEW YORK 11042 SUITE 1000
(516) 869-9000 NEW YORK, NEW YORK 10022
(212) 906-1200
</TABLE>
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
AMOUNT OF SHARES MAXIMUM OFFERING PROPOSED
TITLE OF SECURITIES TO BE PRICE PER MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock
$.01 par value.......... 3,000,000 $35.5625 $106,687,500 $31,473
</TABLE>
(1) Represents the maximum number of Shares that may be acquired under the 1998
Equity Participation Plan of Kimco Realty Corporation.
(2) Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rules 457(h) and 457(c) under the
Securities Act of 1933, as amended ('Securities Act'), based on the average
of the high and low sales prices per share of the Registrant's Common Stock
as reported on the New York Stock Exchange on August 6, 1998.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
by Kimco Realty Corporation, a Maryland corporation (the 'Company'), are
incorporated as of their respective dates in this Registration Statement by
reference:
A. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
B. All other reports filed by the Company pursuant to Sections 13(a)
and 15(d) of the Securities Exchange Act of 1934, as amended (the 'Exchange
Act'), since December 31, 1997.
C. Description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-3 (File No. 333-37285) of the
Registrant.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold are incorporated by reference in this
Registration Statement and are a part hereof from the date of filing such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain partners of Latham & Watkins and members of their families own less
than 1% of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Maryland General Corporation Law ('MGCL') permits a Maryland
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
Company's Charter contains such a provision which limits such liability to the
maximum extent permitted by Maryland law.
The Company's Charter authorizes the Company, to the maximum extent
permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any present or former director or officer or (b) any individual who, while a
director of the Company and at the request of the Company, serves or has served
another corporation, partnership, joint venture,
2
<PAGE>
trust employee benefit plan or any other enterprise as a director, officer,
partner or trustee of such corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise from and against any claim or
liability to which such person may become subject or which such person may incur
by reason of his or her status as a present or former director or officer of the
Company. The Company's Bylaws obligate the Company, to the maximum extent
permitted by Maryland law, to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to (a) any present or
former director or officer who is made a party to the proceeding by reason of
his or her service in that capacity or (b) any individual who, while a director
of the Company and at the request of the Company, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and
who is made a party to the proceeding by reason of his or her service in that
capacity. The Company's Charter and the Company's Bylaws also permit the Company
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 employee or agent of
the Company or a predecessor of the Company.
The MGCL 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 a party by reason of his or her service in that
capacity. The MGCL 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 which they may be made a party 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 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 causes to
believe that the act or omission was unlawful. However, a Maryland corporation
may not indemnify a present or former director or office for an adverse judgment
in a suit by or in the right of the corporation. In addition, the MGCL requires
the Company, as a condition to advancing expenses, to obtain (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
Company as authorized by the Bylaws and (b) a written statement by or on his or
her behalf to repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that the standard of conduct was not met.
In addition, the Company has entered or will enter into an indemnification
agreement ('Indemnification Agreement') with each of its directors. The
Indemnification Agreement provides for the prompt indemnification and
advancement of expenses, including attorneys' fees and other costs, to the
fullest extent permitted by law of a director against expenses and obligations
paid or incurred in connection with investigating, defending, being a witness or
participating in (including on appeal) any threatened, pending or completed
action, suit or proceeding related to the fact that such director is or was a
director, officer, partner, employee, agent, or fiduciary of the Company or is
or was serving at the request of the Company as a director, officer, partner,
employee, trustee, agent or fiduciary of another corporation, partnership, joint
venture, employee benefit plan trust or other enterprise, or by reason of
anything done or not done by a director in any such capacity.
The Indemnification Agreement also provides (i) that a director is
automatically entitled to indemnification for expenses to the extent the
director is successful in defending any indemnification claim whether on the
merits or otherwise, (ii) that the Company has the burden of proving that a
director is not entitled to indemnification in any particular case and that
certain presumptions that may otherwise be drawn against a director seeking
indemnification in connection with the termination of actions or proceedings are
negated, except that the termination of an action or proceeding by conviction or
a plea of nolo contendere (or its equivalent) creates a presumption that the
director is not entailed to indemnification, (iii) a mechanism through which a
director may seek court relief in the event that the Company's Board of
Directors (or other person or body appointed by the Company's Board) determines
that the director would not be permitted to be indemnified under applicable law
(and therefore is not entitled to indemnification under the Indemnification
Agreement), (iv) that a director is entitled to indemnification against all
expenses (including attorneys' fees) incurred in seeking to collect an
indemnification claim or advancement of expenses from the Company or incurred in
seeking to recover under a directors' and officers' liability policy, (v) that
after there has been a change in control in the Company, all of the
3
<PAGE>
Company's determinations regarding a right to indemnification, and the right to
advancement of expenses, shall be made by independent legal counsel, and (vi)
that prior to a change in control of the Company, a director shall not be
entitled to indemnification pursuant to the Indemnification Agreement in
connection with an action, suit or proceeding initiated by the director against
the Company, or its directors or officers unless the Company joins in or
consents to the action, suit or proceeding, except as provided in Section 3 of
the Indemnification Agreement.
Directors' rights under the Indemnification Agreement are not exclusive of
any other rights they may have under Maryland law, directors' or officers'
liability insurance, the Company's Bylaws or otherwise. However, the
Indemnification Agreement does prevent double payment.
The Indemnification Agreement, although not requiring the maintenance of
directors' and officers' liability insurance, does require that the directors be
provided with maximum coverage reasonably economically available if there is
such a policy. Finally, the Indemnification Agreement provides that, if the
Company pays a director pursuant to the Indemnification Agreement, the Company
will be subrogated to the director's rights to recover from third parties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C>
*5.1 -- Opinion of Ballard Spahr Andrews & Ingersoll, LLP
*23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Ballard Spahr Andrews & Ingersoll, LLP (Included in Exhibit 5.1)
24 -- Power of Attorney (Included on signature page)
</TABLE>
- ------------------
*Filed herewith
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 (the 'Securities Act');
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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;
(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) shall not
apply to information contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
4
<PAGE>
(b) The undersigned Registrant hereby undertakes 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 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.
(c) 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 Securities and Exchange Commission
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.
5
<PAGE>
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 TOWN OF NEW HYDE PARK, STATE OF NEW YORK, ON THIS 12TH DAY OF
AUGUST, 1998.
KIMCO REALTY CORPORATION
BY: _________/S/ MILTON COOPER________
Milton Cooper
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on
the signature page to this Registration Statement, hereby constitutes and
appoints Milton Cooper and Michael V. Pappagallo, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same (including post-effective amendments) with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and grants 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 with respect to this Registration Statement
or any amendments or supplements hereto in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them or their
substitute or 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE SIGNED
- ------------------------------------------ ---------------------------------------------- ----------------
<S> <C> <C>
/s/ MARTIN S. KIMMEL Director August 12, 1998
- ------------------------------------------
Martin S. Kimmel
/s/ MILTON COOPER Chairman of the Board of Directors and Chief August 12, 1998
- ------------------------------------------ Executive Officer
Milton Cooper
/s/ MICHAEL J. FLYNN Vice Chairman of the Board of Directors and August 12, 1998
- ------------------------------------------ President and Chief Operating Officer
Michael J. Flynn
/s/ FRANK LOURENSO Director August 12, 1998
- ------------------------------------------
Frank Lourenso
/s/ JOSEPH GRILLS Director August 12, 1998
- ------------------------------------------
Joseph Grills
/s/ RICHARD G. DOOLEY Director August 12, 1998
- ------------------------------------------
Richard G. Dooley
/s/ JOSEPH K. KORNWASSER Director and Senior Executive Vice President August 12, 1998
- ------------------------------------------
Joseph K. Kornwasser
/s/ MICHAEL V. PAPPAGALLO Vice President and Chief Financial Officer August 12, 1998
- ------------------------------------------
Michael V. Pappagallo
</TABLE>
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C> <C>
*5.1 -- Opinion of Ballard Spahr Andrews & Ingersoll, LLP
*23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of Ballard Spahr Andrews & Ingersoll, LLP (Included in Exhibit 5.1)
24.1 -- Power of Attorney (Included on signature page)
</TABLE>
- ------------------
* Filed herewith
7
<PAGE>
EXHIBIT 5.1
OPINION OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP
August 12, 1998
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042
Re: Registration Statement on Form S-8:
1998 Equity
Participation Plan___________________
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 3,000,000 shares (the 'Shares') of Common
Stock, $.01 par value per share, of the Company ('Common Stock') covered by the
above-referenced Registration Statement (the 'Registration Statement'), under
the Securities Act of 1933, as amended (the '1933 Act'). The Shares are to be
issued by the Company pursuant to the Company's 1998 Equity Participation Plan
(the 'Plan'). Capitalized terms used but not defined herein shall have the
meanings given 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, filed with the Securities and Exchange
Commision (the 'Commission'), pursuant to the Securities Act of 1933, as
amended (the '1933 Act'), and the related form of prospectus in the form in
which it will be sent or given to employees of the Company in accordance
with Rule 428(b)(1) under the 1933 Act;
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 a recent date by its
Secretary;
4. Resolutions adopted by the Board of Directors of the Company
relating to (i) the approval of the Plan and (ii) the issuance and
registration of the Shares, certified as of a recent date by the Secretary
of the Company;
5. Resolutions adopted by the stockholders of the Company relating to
the approval of the Plan, certified as of recent date by the Secretary of
the Company;
6. A specimen of the certificate representing a share of Common
Stock, certified as of a recent date by the Secretary of the Company;
7. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
8. A certificate executed by the Secretary of the Company, dated the
date hereof;
9. The Plan; and
10. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
8
<PAGE>
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. 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 statements and information contained in the Documents are
true and complete. There has been no oral or written modification or
amendment to the Documents, or waiver of any of the provisions of any of
the Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued in violation of any restriction or
limitation contained in Article VII of the Charter.
The phrase 'known to us' is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
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 Shares have been duly authorized for issuance pursuant to the
Plan and, when and if issued and delivered against payment therefor in the
manner described in the Plan, will be (assuming that upon any such 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 substantive 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 the securities (or 'blue sky') laws or
the real estate syndication laws of the State of Maryland.
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 Securities and
Exchange Commission as an exhibit to the Registration Statement and,
accordingly, may not be relied upon by, quoted in any manner to, or delivered to
any other person or entity without, in each instance, our prior written consent.
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,
Ballard Spahr Andrews & Ingersoll, LLP
9
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8 of (i) our report dated February 27, 1998, except for Note 17, for
which the date is March 5, 1998, on our audits of the financial statements and
financial statement schedules of Kimco Realty Corporation as of December 31,
1997 and 1996 for each of the three years in the period ended December 31, 1997,
(ii) our report dated January 20, 1998, on our audit of the combined historical
summary of revenue and certain operating expenses of certain acquired properties
(the '1997 Acquired Properties') for the year ended December 31, 1996, (iii) our
report dated May 20, 1998, on our audit of the combined historical summary of
revenue and certain operating expenses of certain acquired properties (the '1998
Acquired Properties') for the year ended December 31, 1997, (iv) our report
dated July 7, 1998, on our audit of the historical summary of revenues of
certain acquired metropolitan life properties (the 'Met Life Properties') for
the year ended December 31, 1997 and (v) our report dated July 24, 1998, on our
audit of the combined historical summary of revenues and certain operating
expenses of certain acquired properties (the 'Second 1998 Acquired Properties')
for the year ended December 31, 1997.
PRICEWATERHOUSECOOPERS LLP
New York, New York
August 11, 1998
10
