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):
June 19, 2014
_____________
KENNEDY-WILSON HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
_____________
 
                           
Delaware
 
001-33824
 
26-0508760
 (State or other jurisdiction
 of Incorporation)
 
(Commission File Number)
 
(IRS Employer Identification No.)

 
9701 Wilshire Blvd., Suite 700 Beverly Hills, California 90212
(Address of principal executive offices) (Zip Code)
 
Registrant’s telephone number, including area code: (310) 887-6400
 
N/A
(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 of the registrant under any of the following provisions (see General Instructions A.2.):
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 


    
 



ITEM 5.02     DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.


On April 14, 2014, the Board of Directors (the “Board”) of Kennedy-Wilson Holdings, Inc. (the “Company”) adopted the first amendment (the “Amendment”) to the Company’s Amended and Restated 2009 Equity Participation Plan (the “Plan”), subject to approval by the Company’s stockholders. On June 19, 2014, the Company’s stockholders approved the Amendment.

Among other things, the Amendment provides for an increase in the aggregate number of shares of common stock of the Company that may be issued pursuant to the Plan by an additional 6,000,000 shares for a total of 11,645,000 shares.

The foregoing summary is qualified in its entirety by reference to the full text of the Amendment, a copy of which is attached hereto as Exhibit 10.1 and incorporated by reference herein.

ITEM 5.03    AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS


On June 19, 2014, the Company filed, with the Secretary of State of the State of Delaware, an amendment the Company’s Second Amended and Restated Certificate of Incorporation. The amendment, which became effective as of such date, increased the number of shares of common stock that the Company is authorized to issue from 125,000,000 shares to 200,000,000 shares. Pursuant to the amendment, the first sentence of Article FOURTH of the Company’s Second Amended and Restated Certificate of Incorporation was amended and restated in its entirety to read as follows:

FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 201,000,000, of which 200,000,000 shares shall be common stock with a par value of $.0001 per share (the “Common Stock”) and 1,000,000 shares shall be Preferred Stock with a par value of $.0001 per share (the “Preferred Stock”).

A copy of the Company's Certificate of Incorporation, as amended, is attached hereto as Exhibit 3.1.

ITEM 5.07      SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.

The Company’s 2014 annual stockholder meeting was held on June 19, 2014. As of the record date for the meeting, the Company had 91,683,127 shares of common stock outstanding, each of which is entitled to one vote.

All of the nominees for director listed in Proposal 1 of the Proxy Statement were elected as follows:
 
Name
For
Withheld
Non Votes
Jerry Solomon
78,023,296
 
3,109,026
 
4,634,691
David A. Minella
78,189,600
 
2,942,722
 
4,634,691


     
Proposal 2 of the Proxy Statement, approval of the amendment to the Company’s Second Amended and Restated Certificate of Incorporation to increase the number of shares of common stock that the Company is authorized to issue from 125,000,000 shares to 200,000,000 shares, was approved by the following vote:
Proposal
For
Against
Abstain
Non Votes
AMENDMENT TO SECOND AMENDED
AND RESTATED CERTIFICATE OF
INCORPORATION
83,321,709
 
2,421,791
 
23,513
4,634,691


    
 


Proposal 3 of the Proxy Statement, approval of the amendment to the Company’s Amended and Restated 2009 Equity Participation Plan to increase the number of shares of the Company’s common stock available for awards thereunder by an additional 6,000,000 shares, was approved by the following vote:

Proposal
For
Against
Abstain
Non Votes
AMENDMENT TO AMENDED
AND RESTATED 2009 EQUITY PARTICIPATION
PLAN
68,307,627
 
12,791,549
 
33,146
4,634,691



Proposal 4 of the Proxy Statement, ratification of the selection of KPMG LLP as the Company’s independent registered public accountants for its fiscal year ending December 31, 2014, was approved by the following vote:

Proposal
For
Against
Abstain
ACCOUNTANTS
85,492,752
 
253,040
 
21,221



Proposal 5 of the Proxy Statement, vote on an advisory (non-binding) proposal to approve the compensation of the Company’s named executive officers, was approved by the following vote:

Proposal
For
Against
Abstain
Non
Votes
ADVISORY VOTE ON
NAMED EXECUTIVE OFFICERS
COMPENSATION
53,989,348
 
27,108,698
 
34,276
4,634,691



ITEM 9.01

FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits.
3.1
Amended and Restated Certificate of Incorporation
10.1
First Amendment to Amended and Restated 2009 Equity Participation Plan.
 
 


    
 


SIGNATURES
    
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
                    
    
 
KENNEDY-WILSON HOLDINGS, INC.
 
 
 
 
By:
/s/ JUSTIN ENBODY
 
 
Justin Enbody
 
 
Chief Financial Officer


 
Date: June 19, 2014


    
 


EXHIBIT INDEX
Exhibit Number
 
Description
3.1
 
 
Amended and Restated Certificate of Incorporation
10.1
 
 
First Amendment to Amended and Restated 2009 Equity Participation Plan.
 




 


    
EXHIBIT 3.1

AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION
OF
KENNEDY-WILSON HOLDINGS, INC.
FIRST: The name of the corporation is Kennedy-Wilson Holdings, Inc. (the “ Corporation ”).
SECOND: The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized under the DGCL.
THIRD: The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the Corporation’s registered agent at such address is the Corporation Trust Company.
FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 201,000,000, of which 200,000,000 shares shall be common stock with a par value of $.0001 per share (the “ Common Stock ”) and 1,000,000 shares shall be Preferred Stock with a par value of $.0001 per share (the “ Preferred Stock ”).
A. Preferred Stock . The Board of Directors (the “ Board ”) is expressly granted authority to issue shares of Preferred Stock, in one or more series, and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions adopted by the Board providing for the issue of such series (a “ Preferred Stock Designation ”) and as may be permitted by the DGCL. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.
B.      Common Stock . Except as otherwise required by law or as otherwise provided in any Preferred Stock Designation, the holders of the Common Stock shall exclusively possess all voting power and each share of Common Stock shall have one vote.
FIFTH: The Corporation’s existence shall be perpetual.




SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
A.      The Board of Directors shall consist of such number of directors as is determined from time to time by resolution adopted by the affirmative vote of a majority of the entire Board of Directors; provided, however, that in no event shall the number of directors be less than one nor more than twelve. The directors shall be divided into three classes, designated Class I, Class II and Class III. The number of directors in each class shall be as nearly equal as possible. The directors in Class I shall be elected for a term expiring at the Annual Meeting of Stockholders to be held in 2010. The directors in Class II shall be elected for a term expiring at the Annual Meeting of Stockholders to be held in 2011. The directors in Class III shall be elected for a term expiring at the Annual Meeting of Stockholders to be held in 2012. Beginning with the 2010 Annual Meeting of Stockholders, each class of directors will be elected for a term of office to expire at the third succeeding Annual Meeting of Stockholders after its election. Except as the DGCL may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified.
B.      Election of directors need not be by ballot unless the bylaws of the Corporation so provide.
C.      The Board shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to or repeal the bylaws of the Corporation as provided in the bylaws of the Corporation, subject to the power of stockholders to alter or repeal any bylaw whether adopted by them or otherwise.
D.      The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote

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thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy), unless a higher vote is required by applicable law, shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interests, or for any other reason.
E.      In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this Second Amended and Restated Certificate, and to any bylaws from time to time made by the stockholders; provided, however, that no bylaw so made shall invalidate any prior act of the directors which would have been valid if such bylaw had not been made.
SEVENTH: The following paragraphs shall apply with respect to liability and indemnification of the Corporations officers and directors and certain other persons:
A. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or modification of this paragraph (A) by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with respect to events occurring prior to the time of such repeal or modification.
B. The Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized hereby.
EIGHTH: Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its

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stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.
NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power.

4


Exhibit 10.1

FIRST AMENDMENT TO
KENNEDY-WILSON HOLDINGS, INC.
AMENDED AND RESTATED
2009 EQUITY PARTICIPATION PLAN
 
THIS FIRST AMENDMENT TO KENNEDY-WILSON HOLDINGS, INC. AMENDED AND RESTATED 2009 EQUITY PARTICIPATION PLAN (this “ First Amendment ”) is made and adopted by the Board of Directors (the “ Board ”) of Kennedy-Wilson Holdings, Inc., a Delaware corporation (the “ Company ”), effective as of June 19, 2014 (the “ Effective Date ”). All capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Plan (as defined below).

RECITALS

WHEREAS, the Company maintains the Kennedy-Wilson Holdings, Inc. Amended and Restated 2009 Equity Participation Plan (as amended from time to time, the “ Plan ”);

WHEREAS, pursuant to Article XVI of the Plan, the Board may amend the Plan from time to time to increase the number of shares of Common Stock subject to the Plan, subject to approval by the Company’s shareholders; and

WHEREAS, the Company desires to amend the Plan to increase the number of shares of Common Stock subject to the Plan by an additional six million (6,000,000) shares of Common Stock as set forth herein.

NOW, THEREFORE, BE IT RESOLVED, that the Plan is hereby amended as set forth herein, effective as of the Effective Date, subject to approval by the Company’s shareholders:

AMENDMENT

1.
Section 5.1 of the Plan is hereby amended and restated in its entirety as follows:

“Section 5.1 Stock Grant and Award Limits . The Committee may from time to time grant Awards to one or more Employees, Directors and/or Consultants determined by it to be eligible for participation in the Plan in accordance with the provisions of Article VI. Subject to Article XV, the aggregate number of shares of Common Stock that may be issued under the Plan shall not exceed Eleven Million Six Hundred Forty-Five Thousand (11,645,000) shares. Notwithstanding any provision in the Plan to the contrary, the maximum aggregate number of shares of Common Stock with respect to one more Awards that may be granted to any one Employee during any calendar year shall be Two Million (2,000,000) shares (subject to adjustment in the same manner as provided in Article XV with respect to shares of Common Stock subject to Awards then outstanding). The limitation set forth in the preceding sentence shall be applied in a manner which shall permit compensation generated in connection with such Awards to constitute “performance-based” compensation for purposes of Section 162(m) of the Code, including, but not limited to, counting against such maximum number of shares, to the extent required under Section 162(m) of the Code, any shares subject to Options or Stock Appreciation Rights that are canceled or repriced.”


    




2.
The third sentence of Article XVI of the Plan is hereby amended and restated in its entirety as follows:

“The Board shall have the right to alter or amend the Plan or any part hereof from time to time; provided , however , that without the approval by a majority of the votes cast at a meeting of shareholders at which a quorum representing a majority of the shares of the Company entitled to vote generally in the election of directors is present in person or by proxy, no amendment or modification of the Plan may (i) materially increase the benefits accruing to Holders, (ii) except as otherwise expressly provided in Article XV, increase the number of shares of Common Stock subject to the Plan or the individual Award limits specified in Article V, (iii) materially modify the requirements for participation in the Plan, or (iv) amend, modify or suspend Section 7.8 (repricing prohibitions) or this Article XVI.”

3.
This First Amendment shall be and is hereby incorporated into and forms a part of the Plan.

4.
Except as expressly provided herein, all terms and conditions of the Plan shall remain in full force and effect.


( Remainder of page internationally left blank )

    

    




*    *    *


I hereby certify that the foregoing First Amendment was duly adopted by the Board of Directors of Kennedy-Wilson Holdings, Inc. on April 14, 2014.

Executed on this 14th day of April, 2014.



By: /s/_Kent Mouton _____
Name: Kent Mouton _______
Title: General Counsel ______         


I hereby certify that the foregoing First Amendment was duly approved by the stockholders of Kennedy-Wilson Holdings, Inc. on June 19, 2014.

Executed on this 19th day of June, 2014.



By: /s/_In Ku Lee ____
Name: In Ku Lee _______
Title: Secretary ______