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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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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 9, 2022
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KENNEDY-WILSON HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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| 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):
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| Large accelerated filer | ☒ | | Accelerated filer | ☐ |
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| Non-accelerated filer | ☐ | | Smaller reporting company | ☐ |
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| 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:
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| 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 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS.
On April 26, 2022, the Board of Directors (the “Board”) of Kennedy-Wilson Holdings, Inc. (the “Company”) adopted an amendment (the “Amendment”) to the Company’s Second Amended and Restated 2009 Equity Participation Plan (the “Second Amended and Restated Plan”), subject to approval by the Company’s stockholders. On June 9, 2022, the Company’s stockholders approved the Amendment and the Amendment became effective.
The Second Amended and Restated Plan provides for the grant of stock options, stock appreciation rights, restricted stock, restricted stock units, distribution equivalent units, performance stock awards, performance unit awards and stock appreciation rights to eligible employees, directors and consultants of the Company and its affiliates.
With respect to awards granted to non-employee directors, the Second Amended and Restated Plan is administered by the full Board. With respect to all other awards, the Second Amended and Restated Plan is administered by the Compensation Committee of the Board (the “Compensation Committee”). The plan administrator has broad authority to administer the Second Amended and Restated Plan, including, but not limited to, the power to designate participants to whom awards may be granted, the types, sizes and terms of awards, the number of awards to be granted, the number of shares of common stock to which an award will relate, and the price, form of payment and timing of awards.
The Amendment (i) increases the aggregate number of shares of common stock of the Company that may be issued under the Second Amended and Restated by an additional 3,000,000 shares to a total of 21,245,000 shares; and (ii) clarifies that the Compensation Committee may only accelerate the vesting, exercisability or payment of an award on a discretionary basis upon the applicable grantee’s termination of services due to death or disability (as defined in the Second Amended and Restated Plan). With respect to (ii) above, the clarification is consistent with the Board’s and Compensation Committee’s interpretation and administration of the Second Amended and Restated Plan (with respect to the subject topic) since 2019. Nevertheless, the plan administrator maintains the flexibility to determine vesting provisions and the other terms of awards issued under the Second Amended and Restated Plan in the applicable award agreements or employment agreements.
The Second Amended and Restated Plan may be amended or terminated by the Board at any time, subject to certain limitations requiring stockholder consent or the consent of the participant. The Second Amended and Restated Plan will expire on April 28, 2027.
A description of the material terms of the Second Amended and Restated Plan, as amended by the Amendment, was included in the Company’s definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission on April 28, 2022, and such description is incorporated herein by reference. The description of the Amendment in the proxy statement and the foregoing summary of the Amendment are qualified in their entirety by reference to the full text of the Amendment, a copy of which is filed herewith as Exhibit 10.1 and incorporated by reference herein.
Item 5.07 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
The Company’s 2022 annual stockholder meeting was held on June 9, 2022. As of the record date for the meeting, the Company had 162,843,936 shares of common stock issued and outstanding or underlying the Company’s outstanding Series A Preferred Stock or the applicable warrants held by holders of shares of the Company’s Series B Preferred Stock, and entitled to vote.
All of the nominees for director listed in proposal 1 of the proxy statement were elected as follows:
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Name | For | Against | Abstain | Broker Non-Votes |
Trevor Bowen | 147,837,391 | 309,926 | 16,944 | 4,400,901 |
Cathy Hendrickson | 143,264,996 | 4,882,962 | 16,303 | 4,400,901 |
Stanley R. Zax | 146,397,424 | 1,749,914 | 16,923 | 4,400,901 |
Proposal 2 of the proxy statement, approval of an amendment to the Company’s Second Amended and Restated 2009 Equity Participation Plan to, among other things, increase the number of shares of the Company’s common stock available for awards thereunder by an additional 3,000,000 shares, was approved by the following votes:
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For | Against | Abstain | Broker Non-Votes |
| 143,817,583 | 4,242,581 | 104,097 | 4,400,901 |
Proposal 3 of the proxy statement, the vote to approve, on an advisory (non-binding) basis, the compensation of the Company’s named executive officers (commonly referred to as a “say-on-pay” vote), was approved by the following votes:
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For | Against | Abstain | Broker Non-Votes |
| 123,587,469 | 24,473,354 | 103,438 | 4,400,901 |
Proposal 4 of the proxy statement, the ratification of the selection of KPMG LLP as the Company’s independent registered accountants for its fiscal year ending December 31, 2022, was approved by the following votes:
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For | Against | Abstain |
| 151,739,082 | 812,197 | 13,883 |
Item 9.01 FINANCIAL STATEMENTS AND EXHIBITS
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Exhibit No. | | Description |
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| 10.1 | | |
| 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.
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| KENNEDY-WILSON HOLDINGS, INC. |
| | |
| By: | /s/ JUSTIN ENBODY |
| | Justin Enbody |
| | Chief Financial Officer |
Date: June 9, 2022
Exhibit 10.1
SECOND AMENDMENT TO
KENNEDY-WILSON HOLDINGS, INC.
SECOND AMENDED AND RESTATED
2009 EQUITY PARTICIPATION PLAN
THIS SECOND AMENDMENT TO KENNEDY-WILSON HOLDINGS, INC. SECOND AMENDED AND RESTATED 2009 EQUITY PARTICIPATION PLAN (this “Second Amendment”) is made and adopted by the Board of Directors (the “Board”) of Kennedy-Wilson Holdings, Inc., a Delaware corporation (the “Company”), on April 26, 2022, effective as of the date of the Company’s 2022 annual meeting of stockholders, provided that it is approved by the Company’s stockholders on that date (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. Second Amended and Restated 2009 Equity Participation Plan (as amended from time to time, the “Plan”);
WHEREAS, pursuant to Article XV of the Plan, the Board may amend the Plan from time to time; provided that any such amendment to increase the number of shares of Common Stock subject to the Plan shall be subject to approval by the Company’s shareholders; and
WHEREAS, the Company desires to amend the Plan as set forth herein, including to increase the number of shares of Common Stock subject to the Plan by an additional three million (3,000,000) 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:
AMENDMENT
1. Section 4.2 of the Plan is hereby amended and restated in its entirety as follows:
“Section 4.2 Powers. Subject to the provisions of the Plan, the Committee shall have the sole authority, in its discretion, to make all determinations under the Plan, including but not limited to determining which Employees, Directors or Consultants shall receive an Award, the time or times when an Award shall be made (the date of grant of an Award shall be the date on which the Award is awarded by the Committee), what type of Award shall be granted, the term of an Award, the date or dates on which an Award vests (including any acceleration of vesting, subject to the limitations in this Section 4.2), the form of any payment to be made pursuant to an Award, the terms and conditions of an Award (including the forfeiture of the Award (and/or any financial gain) if the Holder of the Award violates any applicable restrictive covenant thereof), the Restrictions under a Restricted Stock Award and the number of shares of Common Stock which may be issued under an Award, all as applicable. Notwithstanding the foregoing or anything herein to the contrary, the Committee may only accelerate the vesting, exercisability and/or payment (as applicable) of an Award on a discretionary basis upon a termination of the applicable Holder’s status as an Employee, Director or Consultant (as applicable) due to the Holder’s death or Total and Permanent Disability.”
2. 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 XIV, the aggregate number of shares of Common Stock that may be issued under the Plan shall not exceed twenty-one million two hundred forty-five thousand (21,245,000) shares (the “Share Limit”). Notwithstanding any provision in the Plan to the contrary, the maximum aggregate number of shares of Common Stock with
respect to one or 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 XIV 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 Awards that are canceled or Options or Stock Appreciation Rights that are repriced. In addition, the grant date fair value (determined as of the date of grant under applicable accounting standards) of Awards granted to any Director during any calendar year shall not exceed six hundred thousand dollars $600,000 (the “Director Limit”).”
3. Effective as of the Effective Date, this Second 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.
* * *
I hereby certify that the foregoing Second Amendment was duly adopted by the Board of Directors of Kennedy-Wilson Holdings, Inc. on April 26, 2022.
Executed on this 26th day of April, 2022.
By: _/s/ In Ku Lee_______________________
Name: In Ku Lee
Title: Senior VP, Deputy GC
I hereby certify that the foregoing Second Amendment was duly approved by the stockholders of Kennedy-Wilson Holdings, Inc. on June 9, 2022.
Executed on this 9th day of June, 2022.
By: _/s/ In Ku Lee_______________________
Name: In Ku Lee
Title: Senior VP, Deputy GC