KENNEDY-WILSON HOLDINGS, INC. (NASDAQ:KW) Files An 8-K Unregistered Sales of Equity Securities
ITEM 3.02. UNREGISTERED SALES OF EQUITY SECURITIES.
On August 13, 2010, Kennedy-Wilson Holdings, Inc. (the Company)
issued an aggregate of 32,550 shares of its series B preferred
stock, $0.0001 par value per share (the Series B Preferred
Stock), for an aggregate of $32.55 million. The shares of Series
B Preferred Stock were offered and sold in reliance on the
exemption from registration contained in Section 4(a)(2) of the
Securities Act of 1933, as amended (the Securities Act), and
Regulation D thereunder, in transactions not involving a public
offering. to the terms of the certificate of designations for the
Series B Preferred Stock (the Certificate of Designations), the
Series B Preferred Stock is convertible into shares of shares of
the Companys common stock, $0.0001 par value per share (the
Common Stock) at the election of the holders of such Series B
Preferred Stock. In addition, at any time on or after May 3, 2017
(the Optional Conversion Date) and prior to November 3, 2018, the
Company has the right, to the Certificate of Designations, to
cause any or all of the outstanding Series B Preferred Stock to
be automatically converted.
issued an aggregate of 32,550 shares of its series B preferred
stock, $0.0001 par value per share (the Series B Preferred
Stock), for an aggregate of $32.55 million. The shares of Series
B Preferred Stock were offered and sold in reliance on the
exemption from registration contained in Section 4(a)(2) of the
Securities Act of 1933, as amended (the Securities Act), and
Regulation D thereunder, in transactions not involving a public
offering. to the terms of the certificate of designations for the
Series B Preferred Stock (the Certificate of Designations), the
Series B Preferred Stock is convertible into shares of shares of
the Companys common stock, $0.0001 par value per share (the
Common Stock) at the election of the holders of such Series B
Preferred Stock. In addition, at any time on or after May 3, 2017
(the Optional Conversion Date) and prior to November 3, 2018, the
Company has the right, to the Certificate of Designations, to
cause any or all of the outstanding Series B Preferred Stock to
be automatically converted.
On December 28, 2016, the Company and holders of all outstanding
shares of Series B Preferred Stock entered into a Preferred Stock
Conversion Agreement (the Conversion Agreement) to which the
holders agreed to convert their Series B Preferred Stock in
accordance with the Certificate of Designations at the
then-current conversion price of approximately $9.67 per share of
Common Stock and the Company agreed to pay the holders an
aggregate of $717,500, which represents dividends that would have
accrued on all outstanding Series B Preferred Stock through the
Optional Conversion Date. The Company paid such amount and issued
an aggregate of 3,366,973 shares of Common Stock in settlement of
the conversion of all outstanding shares of Series B Preferred
Stock. The conversion was effected to Section 3(a)(9) of the
Securities Act as an exchange with existing security holders.
shares of Series B Preferred Stock entered into a Preferred Stock
Conversion Agreement (the Conversion Agreement) to which the
holders agreed to convert their Series B Preferred Stock in
accordance with the Certificate of Designations at the
then-current conversion price of approximately $9.67 per share of
Common Stock and the Company agreed to pay the holders an
aggregate of $717,500, which represents dividends that would have
accrued on all outstanding Series B Preferred Stock through the
Optional Conversion Date. The Company paid such amount and issued
an aggregate of 3,366,973 shares of Common Stock in settlement of
the conversion of all outstanding shares of Series B Preferred
Stock. The conversion was effected to Section 3(a)(9) of the
Securities Act as an exchange with existing security holders.
The former holders of the Series B Preferred Stock are entities
that are affiliated with Fairfax Financial Holdings Limited
(Fairfax). The purchase agreement to which the Series B Preferred
Stock was issued granted Fairfax and its affiliates preemptive
rights with respect to certain issuances of capital stock and
debt by the Company, certain registration rights, and also
provided that if certain ownership thresholds are met, Fairfax
will have the right to designate one person to the Companys board
of directors. In connection with the conversion of the Series B
Preferred Stock to the Conversion Agreement, Fairfax agreed to
the expiration of these rights.
that are affiliated with Fairfax Financial Holdings Limited
(Fairfax). The purchase agreement to which the Series B Preferred
Stock was issued granted Fairfax and its affiliates preemptive
rights with respect to certain issuances of capital stock and
debt by the Company, certain registration rights, and also
provided that if certain ownership thresholds are met, Fairfax
will have the right to designate one person to the Companys board
of directors. In connection with the conversion of the Series B
Preferred Stock to the Conversion Agreement, Fairfax agreed to
the expiration of these rights.
ITEM 5.03. AMENDMENT TO ARTICLES OF INCORPORATION OR BYLAWS;
CHANGE IN FISCAL YEAR.
CHANGE IN FISCAL YEAR.
On December 28, 2016, the Companys Board of Directors adopted the
Amended and Restated Bylaws of Kennedy-Wilson Holdings, Inc.,
filed as Exhibit 3.1 herewith (the Amended and Restated Bylaws).
Amended and Restated Bylaws of Kennedy-Wilson Holdings, Inc.,
filed as Exhibit 3.1 herewith (the Amended and Restated Bylaws).
Among other things, these amendments:
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provide that unless the Company consents in writing to the
selection of an alternative forum, the Court of Chancery of the State of Delaware (Chancery Court) shall, to the fullest extent permitted by law, be the sole and exclusive forum for any, (1) derivative action or proceeding brought on behalf of the Company, (2) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of the Company to the Company or the Companys stockholders, (3) any action asserting a claim arising to any provision of the General Corporation Law of the State of Delaware (the DGCL), the Companys certificate of incorporation or the bylaws or as to which the DGCL confers jurisdiction on the Chancery Court, or (4) any action asserting a claim governed by the internal affairs doctrine; |
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delete the provision relating to the manner and effect of
stockholder ratification; |
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provide that the Board of Directors may delegate powers to
any committee thereof to the fullest extent permitted by Section 141(c)(2) of the DGCL; |
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consistent with Section 141(c) of the DGCL, provide that
(x) the Board of Directors may designate alternate members of any committee of the Board to replace any member who is absent or disqualified and (y) unless the Board of Directors specifies otherwise, any committee of the Board of Directors may establish one or more subcommittees consisting of one or more of its members and delegate to any such subcommittee any of the powers of the committee; |
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consistent with Section 145(c) of the DGCL, provide that
the mandatory indemnification of expenses in circumstances where the party seeking indemnification has been successful on the merits or otherwise in the defense of any action, suit or proceeding apply by its terms to current and former officers and directors of the Company; and |
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clarify that references to officers of the Company in the
provisions of the Amended and Restated Bylaws dealing with indemnification and advancement of expenses are solely to those officers of the Company designated by the Board of Directors in accordance with the Amended and Restated Bylaws. |
The above description of the Amended and Restated Bylaws is not
complete and is qualified in its entirety by reference to the
Amended and Restated Bylaws of Kennedy-Wilson Holdings, Inc.,
which bylaws are filed as an exhibit to this Current Report and
are incorporated by reference into this Item 5.03.
complete and is qualified in its entirety by reference to the
Amended and Restated Bylaws of Kennedy-Wilson Holdings, Inc.,
which bylaws are filed as an exhibit to this Current Report and
are incorporated by reference into this Item 5.03.
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ITEM 9.01.
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FINANCIAL STATEMENTS AND EXHIBITS
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(d) Exhibits.
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3.1
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Amended and Restated Bylaws
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