<PAGE>
As filed with the Securities and Exchange Commission on August 20, 1999
Registration No. 33-60050
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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.)
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
(Address of principal executive offices)
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KIMCO REALTY CORP. 401(K) PLAN
(Full title of the plan)
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Bruce Kauderer, Esq.
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
(Name and address of agent for service)
--------------------------
Copy to:
Raymond Y. Lin, Esq.
Latham & Watkins
885 Third Avenue
New York, New York 10022
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered (1) Registered Offering Price Aggregate Registration
Per Share (2) Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 100,000 $36.4375 $3,643,750.00 $1,012.96
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Kimco Realty Corp. 401(k) Plan.
(2) For purposes of computing the registration fee only. Pursuant to Rule
457(h), the Proposed Maximum Offering Price Per Share is based upon the average
of the high and low price for shares of the Company's common stock, par value
$.01 per share, as reported on the New York Stock Exchange composite tape on
August 13, 1999.
<PAGE>
PART I
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
Item 3. Incorporation of Documents by Reference.
The SEC allows us to "incorporate by reference" the information Kimco
Realty Corporation files with them, which means that Kimco Realty Corporation
can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this
prospectus, and information that Kimco Realty Corporation files later with the
SEC will automatically update and supersede this information. Kimco Realty
Corporation incorporates by reference the documents listed below and any future
filings Kimco Realty Corporation makes with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 (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:
o Annual Report on Form 10-K for the fiscal year ending December 31, 1998
(File No. 1-10899);
o Quarterly Report on Form 10-Q for the quarters ended March 31, 1999
(File No. 1-10899) and June 30, 1999 (File No. 1-10899);
o Proxy statement dated April 12, 1999 (File No. 1-10899);
o Current Reports on Form 8-K filed May 13, 1999 (File No. 1-10899),
March 26, 1999 (File No. 1-10899) and January 29, 1999 (File No.
1-10899);
o The description of our capital stock contained in our registration
statements on Form S-3, dated August 31, 1998 (File No. 333-61303) and
our registration statement on Form S-4, dated May 14, 1998 (File No.
333-52667), including amendment dated May 15, 1998.
Upon request, Kimco Realty Corporation will provide to you without
charge a copy of any of the documents incorporated by reference in this
prospectus, except the exhibits to those documents (unless the exhibits are
specifically incorporated by reference in the documents). You may request for
these copies from:
Bruce M. Kauderer, Esq.
General Counsel
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
(516) 869-9000
Item 4. Description of Securities.
Not required to be filed with this registration statement.
1
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Item 5. Interests of Named Experts and Counsel.
Certain members of Latham & Watkins and their families own beneficial
interests in less than 1% of our common stock.
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law (the "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. Kimco
Realty Corporation's charter contains such a provision, which eliminates such
liability to the maximum extent permitted by Maryland law.
Kimco Realty Corporation's charter authorizes it, 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 Kimco Realty Corporation and at the request of Kimco Realty
Corporation, 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. Kimco Realty Corporation's
bylaws obligate it, 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 service in that capacity or
(b) any individual who, while a director of Kimco Realty Corporation and at the
request of Kimco Realty Corporation, 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 service in that capacity. Kimco
Realty Corporation's charter and bylaws also permit Kimco Realty Corporation to
indemnify and advance expenses to any person who served a predecessor of Kimco
Realty Corporation in any of the capacities described above and to any employee
or agent of Kimco Realty Corporation or a predecessor of Kimco Realty
Corporation.
The MGCL requires a corporation (unless its charter provides otherwise,
which Kimco Realty Corporation'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 is made a party by reason of his 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 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. In addition, the MGCL requires Kimco Realty Corporation, as a
condition to advancing expenses to obtain (a) a written affirmation by the
director or officer of his good faith belief that he has met the standard of
conduct necessary for indemnification by Kimco Realty Corporation as authorized
by the bylaws and (b) a written statement by or on his behalf to repay the
amount paid or reimbursed by Kimco Realty Corporation if it shall ultimately be
determined that the standard of conduct was not met.
2
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
24.1 Consent of PricewaterhouseCoopers LLP
Pursuant to Item 8 of the instructions to Form
S-8, the undersigned registrant hereby undertakes to
submit the Kimco Realty Corp. 401(k) Plan and any
amendment thereto, to the Internal Revenue Service
("IRS") in a timely manner, and has made or will make
all changes required by the IRS in order to qualify such
plan under Section 401(a) of the Internal Revenue Code
of 1986, as amended.
Item 9. Undertakings.
a. The undersigned registrant and the Plan hereby
undertake:
(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,
as amended;
(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 and 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 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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)(ii) and (a)(1)(iii)
shall not apply to information contained in periodic reports
filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, that
are incorporated by reference in this registration statement.
3
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(2) That, for the purpose of determining any
liability under the Securities Act of 1933, as amended, 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 and the Plan hereby undertake
that, for purposes of determining any liability under the Securities
Act of 1933, as amended, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange
Act of 1934, as amended, and each filing of the Plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934, as
amended, that is incorporated by reference in this 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, as amended, 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 of 1933, as amended, 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 of 1933, as amended, and will be governed by the final
adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 19th
day of August, 1999.
KIMCO REALTY CORPORATION
By: /s/ Michael V. Pappagallo
---------------------------------
Michael V. Pappagallo
Vice President and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Martin S. Kimmel Director August 19, 1999
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Martin S. Kimmel
/s/ Milton Cooper Chairman of the Board of August 19, 1999
- -------------------------------------- Directors and Chief Executive
Milton Cooper Officer
/s/ Michael J. Flynn Vice Chairman of the Board of August 19, 1999
- -------------------------------------- Directors, President and Chief
Michael J. Flynn Operating Officer
/s/ Michael V. Pappagallo Vice President and Chief August 19, 1999
- -------------------------------------- Financial Officer
Michael V. Pappagallo
/s/ Richard G. Dooley Director August 19, 1999
- --------------------------------------
Richard G. Dooley
/s/ Frank Lourenso Director August 19, 1999
- --------------------------------------
Frank Lourenso
/s/ Joseph Grills Director August 19, 1999
- --------------------------------------
Joseph Grills
/s/ Joseph K. Kornwasser Director and Senior Executive August 19, 1999
- -------------------------------------- Vice President
Joseph K. Kornwasser
</TABLE>
S-1
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Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned, acting as Plan Administrator, has duly caused this Registration
Statement to be signed on the Plan's behalf in the Town of New Hyde Park, State
of New York, on August 19, 1999.
KIMCO REALTY CORP. 401(K) PLAN
By: Kimco Realty Corporation
Plan Administrator
By: /s/ Michael V. Pappagallo
-------------------------
Name: Michael V. Pappagallo
Title: Vice President and Chief
Financial Officer
S-2
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Sequential page number
*24.1 Consent of PricewaterhouseCoopers LLP
* Filed herewith
<PAGE>
EXHIBIT 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 (File No. 33-60050) of (i) our report dated February 26, 1999, on our
audits of the financial statements and financial statement schedules of Kimco
Realty Corporation as of December 31, 1998 and 1997 and for each of the three
years in the period ended December 31, 1998 and (ii) our report dated January
26, 1999, on our audit of the combined historical summary of revenues and
certain operating expenses of certain acquired properties (the "Fourth 1998 and
1999 Acquired Properties") for the year ended December 31, 1997.
PRICEWATERHOUSECOOPERS LLP
New York, New York
August 19, 1999
