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)
October 16, 2015

KENNEDY-WILSON HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)

Delaware
(State or Other Jurisdiction of Incorporation)

 
 
001-33824
26-0508760
(Commission File Number)
(IRS Employer Identification No.)
 
 
151 S. El Camino Drive
Beverly Hills, California
90212
(Address of Principal Executive Offices)
(Zip Code)


(310) 887-6400
(Registrant’s Telephone Number, Including Area Code)


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:

     
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

     
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

     
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

     
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 October 16, 2015, the Compensation Committee of the Board of Directors (the “Compensation Committee”) of Kennedy-Wilson Holdings, Inc. (the “Company”) approved the grant of restricted stock awards covering shares of the Company’s common stock (the “restricted shares”) under the Company’s Amended and Restated 2009 Equity Participation Plan (as amended, the “Plan”) to each of the Company’s named executive officers (the “executives”).
Vesting . The restricted shares will vest over a three-year period based on the Company’s return on equity and the executive’s continued employment with the Company. One-third of the restricted shares will vest if the Company’s return on equity (as defined in the applicable award agreement) for the applicable Company fiscal year equals or exceeds 9% (the “performance goal”), and the executive remains employed with the Company or its subsidiaries until at least March 15 of the year following such fiscal year. The performance periods over which the Company’s return on equity will be measured for the awards will be the Company’s fiscal years ending December 31, 2015, 2016 and 2017. To the extent that the vesting requirements described above are not satisfied as of any March 15 vesting date, the restricted shares subject to vesting on such vesting date will be completely forfeited as of such date.
No-Sale Period; Transferability . The restricted shares generally will not be transferable unless and until such shares vest. In addition, notwithstanding the foregoing, an executive may not, without the consent of the Compensation Committee, transfer, sell or otherwise dispose of any vested restricted shares prior to the earlier to occur of (i) the third anniversary of the date on which such shares vest, or (ii) the occurrence of a Change of Control. The transfer restrictions described in the preceding sentence will not apply to any transfer of shares to the Company, any transfer of shares in satisfaction of applicable withholding obligations with respect to the restricted shares, or any transfer following the termination of an executive’s employment with the Company or its subsidiaries (including by will or pursuant to the laws of descent and distribution).
Dividends . Any dividends declared on the Company’s common stock with respect to any unvested restricted shares will not be paid to the executive on a current basis, but will instead accumulate and be paid to the executive in a lump sum on the date (if any), and only to the extent, that the underlying restricted shares vest.
Change of Control . In the event of a Change of Control of the Company (as defined in the Plan), all then-unvested restricted shares will vest in full as of the date of the Change of Control, subject to the executive’s continued employed until at least immediately prior to the Change of Control.
Certain Terminations of Employment . Except as otherwise described below, any restricted shares that have not vested as of the date on which an executive’s employment terminates for any reason will be cancelled and forfeited by the executive.
If an executive’s employment is terminated by the Company or its subsidiaries without “cause” (as defined in the Plan) or by the executive for “good reason” (as defined in the applicable award agreement), the Compensation Committee may, in its sole discretion, waive the requirement that the executive remain employed by the Company or its subsidiaries following the date of termination, such that any restricted shares that remain eligible to vest will become fully vested if the applicable Performance Goal is subsequently achieved.
In addition, if an executive’s employment terminates due to the executive’s death or “total and permanent disability” (as defined in the Plan), the requirement that the executive be employed by the Company or its subsidiaries following the date of termination will no longer apply. Following such a termination, any restricted shares eligible to vest will become fully vested if the applicable Performance Goal is subsequently achieved.
Awards . The executives were awarded the following amounts of restricted shares: William J. McMorrow – 425,000 shares; Justin Enbody – 100,000 shares; Mary Ricks – 260,000 shares; Matthew Windisch – 130,000 shares; and Kent Mouton – 130,000 shares.

    


The foregoing summary is qualified in its entirety by reference to the full text of the Employee Restricted Stock Award Agreement with respect to the restricted shares, a copy of which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
Item 9.01.    Financial Statements and Exhibits
(d)    Exhibits
10.1
Form of Employee Restricted Stock Award Agreement.

    


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.

 
 
Date: October 16, 2015

Kennedy-Wilson Holdings, Inc.


By:   /S/ JUSTIN ENBODY          
   Justin Enbody
Chief Financial Officer


    


EXHIBIT INDEX
 
 
 
 
 
Exhibit Number
 
Description
10.1

 
 
Form of Employee Restricted Stock Award Agreement.


 
 
 
 
 
 



 


    

Exhibit 10.1

KENNEDY-WILSON HOLDINGS, INC.
AMENDED AND RESTATED 2009 EQUITY PARTICIPATION PLAN
EMPLOYEE RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT (this “ Agreement ”), is made effective as of [_________], 2015 (the “ Effective Date ”), by and between Kennedy-Wilson Holdings, Inc., a Delaware corporation (the “ Company ”), and [_________] (the “ Awardee ”).
WITNESSETH:
WHEREAS, the Company has adopted the Kennedy-Wilson Holdings, Inc. Amended and Restated 2009 Equity Participation Plan (as amended, the “ Plan ”) for the benefit of its employees, nonemployee directors and consultants and the employees, nonemployee directors and consultants of its affiliates, and
WHEREAS, the Committee has authorized the award to the Awardee of shares of Restricted Stock (“ Restricted Shares ”) under the Plan, on the terms and conditions set forth in the Plan and as hereinafter provided.
NOW, THEREFORE, in consideration of the premises contained herein, the Company and the Awardee hereby agree as follows:
1. Definitions .
To the extent not defined herein, terms used in this Agreement which are defined in the Plan shall have the same meanings as set forth in the Plan.
2.      Award of Restricted Shares .
The Committee hereby awards to the Awardee [_________] Restricted Shares. All such Restricted Shares shall be subject to the restrictions and forfeiture provisions contained in Sections 4, 5 and 6, such restrictions and forfeiture provisions to become effective immediately upon execution of this Agreement by the parties hereto.
3.      Stock Issuance .
The Awardee hereby acknowledges that the Restricted Shares are issued in book entry form on the books and records as kept by the Company’s transfer agent, shall be registered in the name of the Awardee and a stock certificate evidencing the Restricted Shares shall not be delivered to the Awardee until the Awardee satisfies the vesting requirements contained in Sections 4 or 5. In the event that a stock certificate is delivered to the Awardee before the vesting requirements are satisfied and all Restrictions imposed pursuant to this Agreement have lapsed, the Awardee hereby acknowledges that such stock certificate shall bear the following legend:
“The transferability of this certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture) of an Agreement entered into between the registered owner and Kennedy-Wilson Holdings, Inc., effective as of [_________], 2015. Copies

 
 
 





of such Agreement are on file in the offices of the Secretary, Kennedy-Wilson Holdings, Inc., 151 S. El Camino Drive, Beverly Hills, CA 90212.”
4.      Vesting .
Subject to Sections 5 and 6 below, the Restricted Shares shall vest, no longer be subject to Restrictions and become transferable pursuant to the terms of this Agreement and the Plan as follows (as summarized in Exhibit A attached hereto):
(a)      One-third (1/3rd) of the Restricted Shares shall vest upon the occurrence of both (i) the Awardee being an employee of the Company or an Affiliate as of March 15, 2016, and (ii) the Return on Equity (as defined below) equaling or exceeding the Performance Goal (as defined below) for the Company’s fiscal year ending December 31, 2015, as determined by the Committee;
(b)      One-third (1/3rd) of the Restricted Shares shall vest upon the occurrence of both (i) the Awardee being an employee of the Company or an Affiliate as of March 15, 2017, and (ii) the Return on Equity equaling or exceeding the Performance Goal for the Company’s fiscal year ending December 31, 2016, as determined by the Committee; and
(c)      One-third (1/3rd) of the Restricted Shares shall vest upon the occurrence of both (i) the Awardee being an employee of the Company or an Affiliate as of March 15, 2018, and (ii) the Return on Equity equaling or exceeding the Performance Goal for the Company’s fiscal year ending December 31, 2017, as determined by the Committee.
Notwithstanding the foregoing, in the event that a Change of Control occurs and the Awardee remains in continued employment with the Company or an Affiliate until at least immediately prior to the Change of Control, all of the then-unforfeited Restricted Shares shall automatically become fully vested, no longer subject to Restrictions and freely transferable, as of the date of such Change of Control.
To the extent that any of the above vesting requirements contained in Sections 4(a) – 4(c) are not satisfied as of a particular vesting date, the Restricted Shares subject to vesting on such vesting date shall immediately be forfeited as of such date.
For purposes of this Agreement:
“ Return on Equity ” means the ratio of Adjusted EBITDA (as defined in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission) to Tangible Book Equity (calculated as shareholders’ equity less goodwill in accordance with generally accepted accounting principles) for the applicable Company’s fiscal year ending December 31.
“ Performance Goal ” means nine percent (9%).
5.      Termination of Employment .
Notwithstanding the foregoing, if, prior to the Awardee’s fully satisfying any of the vesting requirements set forth in Section 4:

 
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(a)      The Awardee’s employment with the Company or an Affiliate shall be terminated by the Company or Affiliate without Cause or by the Awardee for Good Reason (as defined below), in any such event, the Committee may, in its sole discretion, provide that all then-unforfeited Restricted Shares subject to vesting thereafter shall, on each subsequent March 15, become fully vested, no longer subject to Restrictions and transferable if all of the above vesting requirements with respect to such vesting date, except the requirement that the Awardee be an employee of the Company or an Affiliate as of the vesting date, are satisfied;
(b)      The Awardee’s employment with the Company or an Affiliate shall be terminated by reason of the Awardee’s death or Total and Permanent Disability, in any such event, all then-unforfeited Restricted Shares subject to vesting thereafter shall, on each subsequent March 15, become fully vested, no longer subject to Restrictions and transferable if all of the above vesting requirements with respect to such vesting date, except the requirement that the Awardee be an employee of the Company or an Affiliate as of the vesting date, are satisfied; or
(c)      The Awardee’s employment with the Company or an Affiliate shall be terminated for any reason other than as set forth in Section 5(a) or 5(b), in any such event, all of the Awardee’s then-unforfeited Restricted Shares shall thereupon be cancelled and forfeited as of the date of such termination of employment.
For purposes of this Agreement, the term “ Good Reason ” shall mean the voluntary termination of the employment (or other service relationship) of the Awardee with the Company or an Affiliate by the Awardee within six months of the Company’s or Affiliate’s (A) instructing the Awardee to work (or provide services) full-time or substantially full-time at any location not acceptable to the Awardee (other than the Company’s or Affiliate’s main headquarters) that is more than 50 miles from the Awardee’s principal place of work and more than 50 miles from the Awardee’s principal residence, (B) eliminating or materially reducing the Awardee’s duties for the Company or Affiliate or (C) materially reducing the Awardee’s base pay (or base compensation).
6.      Restriction on Transferability .
Except as otherwise provided in the Plan and subject to Section 5, the Restricted Shares shall not be transferable unless and until (and solely to the extent) the Awardee satisfies the vesting requirements contained in Section 4. In addition, notwithstanding anything herein or in the Plan to the contrary, the Awardee shall not, without the consent of the Committee (which may be withheld in its sole discretion), sell, pledge, assign, hypothecate, transfer, or otherwise dispose of (collectively, “ Transfer ”) any vested Restricted Shares prior to the earlier to occur of (a) the third (3rd) anniversary of the date on which such Restricted Shares satisfy the vesting requirements contained in Section 4 or 5 and such shares are no longer subject to the Restrictions and (b) the occurrence of a Change of Control (the “ Transfer Restrictions ”); provided , however , that the Transfer Restrictions shall not apply to (i) any Transfer of shares to the Company, (ii) any Transfer of shares in satisfaction of any withholding obligations with respect to the Restricted Shares, or (iii) any Transfer following the termination of the Awardee’s employment with the Company or an Affiliate, including without limitation by will or pursuant to the laws of descent and distribution. Any Transfer of the Restricted Shares which is not made in compliance with the Plan and this Agreement shall be null and void and of no effect.

 
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7.      Voting and Dividend Rights .
The Awardee shall have the voting rights of a stockholder of Common Stock with respect to the Restricted Shares. Any dividends declared on the Common Stock with respect to unvested Restricted Shares shall not be paid to the Awardee on a current basis, but shall instead accumulate and be paid to the Awardee in a lump sum on the date (if any), and only to the extent, that the underlying Restricted Shares vest. The Awardee’s right to any unpaid dividends with respect to unvested Restricted Shares that are forfeited, cancelled or otherwise terminate without having vested shall be forfeited, cancelled and shall terminate upon the forfeiture, cancellation or termination of the underlying Restricted Shares. Any amounts that may become distributable in respect of dividends declared or paid on the Common Stock shall be treated separately from the Restricted Shares and the rights arising in connection therewith for purposes of Section 409A of the Code (including for purposes of the designation of time and form of payments required by Section 409A of the Code).
8.      Regulation by the Committee .
This Agreement and the Restricted Shares shall be subject to the administrative procedures and rules as the Committee shall adopt. All decisions of the Committee upon any question arising under the Plan or under this Agreement, shall be conclusive and binding upon the Awardee, including, without limitation, any question relating to the vesting conditions set forth in Section 4.
9.      Withholding .
The Company or an Affiliate shall be entitled to deduct and withhold the minimum amount necessary in connection with the Awardee’s Restricted Shares to satisfy its withholding obligations under any and all federal, state and/or local tax rules or regulations.
10.      Amendment .
The Committee may amend this Agreement at any time and from time to time; provided , however , that no amendment of this Agreement that would impair the Awardee’s rights or entitlements with respect to the Restricted Shares shall be effective without the prior written consent of the Awardee.
11.      Plan Terms .
The terms of the Plan are hereby incorporated herein by reference.
12.      Effective Date of Award .
The award of each Restricted Share under this Agreement shall be effective as of the Effective Date.
13.      Awardee Acknowledgment .
By executing this Agreement, the Awardee hereby acknowledges that he or she has received and read the Plan and this Agreement and that he or she agrees to be bound by all of the terms of both the Plan and this Agreement.

 
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[Signature page follows]



 
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of the date first above written.

AWARDEE:
 
KENNEDY-WILSON HOLDINGS, INC.
 
 
 
________________________________
[__________]
 
By:                   
 
 
Its:                
 


 
 
 
S-1





EXHIBIT A
Vesting Criteria for the
Kennedy Wilson Amended and Restated 2009 Equity Participation Plan
for Restricted Stock Awards to Employees ([___], 2015)

I.
The Performance Goal is nine percent (9%).

II.
The Return on Equity will be calculated as the ratio of Adjusted EBITDA (as defined in KW’s 10-K and 10-Qs) to the Tangible Book Equity (Shareholder Equity less Goodwill) for the calendar year during the vesting period ending on the prior 12/31.

III.
Actual vesting on each calculation date will take place if the Return on Equity (as defined above in II .) is equal or greater than the Performance Goal set forth in I. above.

IV.
All calculations will be reviewed and approved by the Compensation Committee of the Board and their decisions will be final and conclusive and set forth in the minutes of their meetings.

V.
Vesting of award – the Restricted Shares will vest in substantially equal installments over three (3) years, subject to an employment requirement and the performance metric noted in III . above. Dividends declared with respect to unvested Restricted Shares will be held by KW and paid as and when (and only to the extent that) such shares vest as set forth in the Restricted Stock Award Agreement.



 
 
 
A-1