Kennedy-Wilson Holdings, Inc. (Form: 8-K, Received: 03/08/2022 16:19:48)

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):

March 7, 2022

_____________

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.)

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)

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.):

☐ 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))

(See definition of “large accelerated filer," "accelerated filer," "smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act). (Check one):

Large accelerated filer

☒

Accelerated filer

☐

Non-accelerated filer

☐

Smaller reporting company

☐

Emerging growth company

☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐ Yes ☒ No

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common stock, $.0001 par value	KW	NYSE

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 13(a) of the Exchange Act. ☐

Item 3.03 Material Modification to Rights of Security Holders.

The information under Item 1.01 of the Current Report on Form 8-K filed by Kennedy-Wilson Holdings, Inc. (the “Company”) on February 23, 2022 is incorporated herein by reference.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On March 7, 2022, the Company filed with the Secretary of State of the State of Delaware: (i) a Certificate of Elimination (the “Prior Series A Certificate of Elimination”) to eliminate all references in the Company’s Amended and Restated Certificate of Incorporation (the “Charter”) to the Company’s previously designated Series A Preferred Stock (the “Prior Series A Preferred Stock”); and (ii) a Certificate of Elimination (the “Prior Series B Certificate of Elimination”) to eliminate all references in the Charter to the Company’s previously designated Series B Preferred Stock (the “Prior Series B Preferred Stock”). Following the filing of each of the Prior Series A Certificate of Elimination and the Prior Series B Certificate of Elimination, all of the shares of the Company’s preferred stock that were designated as either Prior Series A Preferred Stock or Prior Series B Preferred Stock were returned to the status of authorized but unissued shares of preferred stock of the Company.

Copies of each of the Prior Series A Certificate of Elimination and the Prior Series B Certificate of Elimination are filed herewith as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference.

In addition, the information contained under the heading “Certificate of Designations Establishing the 4.75% Series B Cumulative Perpetual Preferred Stock” under Item 1.01 of the Current Report on Form 8-K filed by the Company on February 23, 2022 is incorporated herein by reference.

Item 8.01 Other Events.

On March 8, 2022, the Company closed the previously announced private placement of: (i) 300,000 shares of the Company’s 4.75% Series B Cumulative Perpetual Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”); and (ii) 13,043,478 warrants (the “Warrants”) to purchase shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), in each case pursuant to that certain 4.75% Series B Cumulative Perpetual Preferred Stock and Warrant Purchase Agreement (the “Securities Purchase Agreement”) for gross proceeds of $300,000,000 (the “Transaction”). The Series B Preferred Stock ranks on a parity with the Company’s 5.75% Series A Cumulative Perpetual Convertible Preferred Stock, and the Company has the right, at its option, to redeem the Series B Preferred Stock at any time (subject to mandatory redemption upon certain change-of-control events). Each Warrant is initially exercisable for one (1) share of Common Stock at an exercise price of $23.00 per share of Common Stock. Warrants may be exercised by the holder thereof on or before the date that is the seventh (7th) anniversary of the issue date of the Warrants.

Descriptions of the terms of the Series B Preferred Stock, the Warrants and the Transaction, and a copy of the Securities Purchase Agreement and related forms of the Series B Preferred Stock Certificate of Designations, the Warrant Agreement and form of Warrant attached thereto and Registration Rights Agreement, were included in the Current Report on Form 8-K filed by the Company on February 23, 2022, which is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.


Exhibit No.						Description

3.1						Certificate of Elimination with respect to the Prior Series A Preferred Stock.
3.2						Certificate of Elimination with respect to the Prior Series B Preferred Stock.
104						Cover Page Interactive Data File - The cover page interactive data file does not appear in the interactive data file because its XBRL tags are embedded within the inline XBRL document.

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: March 8, 2022

Exhibit 3.1

CERTIFICATE OF ELIMINATION
OF
SERIES A PREFERRED STOCK
OF
KENNEDY-WILSON HOLDINGS, INC.

(Pursuant to Section 151(g) of the

General Corporation Law of the State of Delaware)

Kennedy-Wilson Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:

FIRST: Pursuant to the authority granted to the Board of Directors of the Company (the “Board”) pursuant to the Company’s Amended and Restated Certificate of Incorporation (as amended, the “Certificate of Incorporation”) and Section 151(g) of the DGCL, the Board previously authorized the issuance of, and established the voting powers, designations, preferences and relative, participating and other rights, and the qualifications, limitations and restrictions of, 100,000 shares of Series A Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), as evidenced by the Certificate of Designation with respect to such Series A Preferred Stock filed with the Secretary of State of the State of Delaware on May 21, 2010 (as amended, the “Series A Certificate of Designation”).

SECOND: No shares of Series A Preferred Stock are outstanding, and none will be issued subject to the Series A Certificate of Designation governing such Series A Preferred Stock.

THIRD: The Board has duly adopted the following resolutions approving the elimination of the Series A Preferred Stock, which resolutions remain in full force and effect as of the date hereof:

RESOLVED, that none of the authorized shares of Series A Preferred Stock are outstanding, and none will be issued subject to the Series A Certificate of Designation;

RESOLVED FURTHER, that the Authorized Officers be, and each of them hereby is, authorized and directed in the name and on behalf of the Company to file a Certificate of Elimination with the Secretary of State of the State of Delaware pursuant to Section 151(g) of the DGCL, substantially in the form provided to the Board, setting forth a copy of these resolutions;

RESOLVED FURTHER, that when the Certificate of Elimination setting forth these resolutions becomes effective, it shall have the effect of eliminating from the Certificate of Incorporation all matters set forth in the Series A Certificate of Designation with respect to the Series A Preferred Stock and all of the shares that were designated as Series A Preferred Stock shall be returned to the status of authorized but unissued shares of preferred stock of the Company, without designation as to series;

RESOLVED FURTHER, that the Authorized Officers, and each such Authorized Officer, acting alone and requiring no other signature by any of the other Authorized Officers, be, and hereby is, authorized, empowered and directed to exercise all the powers and responsibilities of the Authorized Officers as set forth in these resolutions; and

RESOLVED FURTHER, that the Authorized Officers be, and each of them individually hereby is, authorized and directed in the name and on behalf of the Company to take all other actions and to execute and deliver such other documents, in addition to those set forth in the foregoing resolutions, as they may deem necessary or advisable in order to effect the purposes of the foregoing resolutions, and that all such actions heretofore so taken be, and they hereby are, in all respects ratified, confirmed and approved.

FOURTH: Pursuant to the provisions of Section 151(g) of the DGCL, all matters set forth in the Series A Certificate of Designation with respect to the Series A Preferred Stock are hereby eliminated from the Certificate of Incorporation, and the shares that were designated as Series A Preferred Stock are hereby returned to the status of authorized but unissued shares of preferred stock of the Company, without designation as to series.

IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be signed by its duly authorized officer on the seventh day of March, 2022.

KENNEDY-WILSON HOLDINGS, INC.

By: /s/ In Ku Lee

Name: In Ku Lee

Title: Secretary

Exhibit 3.2

CERTIFICATE OF ELIMINATION
OF
SERIES B PREFERRED STOCK
OF
KENNEDY-WILSON HOLDINGS, INC.

(Pursuant to Section 151(g) of the

General Corporation Law of the State of Delaware)

FIRST: Pursuant to the authority granted to the Board of Directors of the Company (the “Board”) pursuant to the Company’s Amended and Restated Certificate of Incorporation (as amended, the “Certificate of Incorporation”) and Section 151(g) of the DGCL, the Board previously authorized the issuance of, and established the voting powers, designations, preferences and relative, participating and other rights, and the qualifications, limitations and restrictions of, 32,550 shares of Series B Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”), as evidenced by the Certificate of Designation with respect to such Series B Preferred Stock filed with the Secretary of State of the State of Delaware on August 13, 2010 (as amended, the “Series B Certificate of Designation”).

SECOND: No shares of Series B Preferred Stock are outstanding, and none will be issued subject to the Series B Certificate of Designation governing such Series B Preferred Stock.

THIRD: The Board has duly adopted the following resolutions approving the elimination of the Series B Preferred Stock, which resolutions remain in full force and effect as of the date hereof:

RESOLVED, that none of the authorized shares of Series B Preferred Stock are outstanding, and none will be issued subject to the Series B Certificate of Designation;

RESOLVED FURTHER, that when the Certificate of Elimination setting forth these resolutions becomes effective, it shall have the effect of eliminating from the Certificate of Incorporation all matters set forth in the Series B Certificate of Designation with respect to the Series B Preferred Stock and all of the shares that were designated as Series B Preferred Stock shall be returned to the status of authorized but unissued shares of preferred stock of the Company, without designation as to series;

FOURTH: Pursuant to the provisions of Section 151(g) of the DGCL, all matters set forth in the Series B Certificate of Designation with respect to the Series B Preferred Stock are hereby eliminated from the Certificate of Incorporation, and the shares that were designated as Series B Preferred Stock are hereby returned to the status of authorized but unissued shares of preferred stock of the Company, without designation as to series.

IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be signed by its duly authorized officer on the seventh day of March, 2022.

KENNEDY-WILSON HOLDINGS, INC.

By: /s/ In Ku Lee

Name: In Ku Lee

Title: Secretary