KENNEDY-WILSON HOLDINGS, INC. (NYSE:KW) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
New Offer Announcement
On June13, 2017, Kennedy-Wilson Holdings, Inc. (KWH) issued an
announcement (the New Offer Announcement) to Rule 2.7 of the
United Kingdom City Code on Takeovers and Mergers (the Code)
disclosing an agreement between KWH and Kennedy Wilson Europe
Real Estate plc, a public limited company registered in Jersey
(KWE), to make available a new alternative proposal in connection
with KWHs previously announced recommended offer to acquire all
of the outstanding shares (other than shares owned by KWH or its
subsidiaries or held in treasury) of KWE (the Transaction) by
means of a court sanctioned scheme of arrangement under Article
125 of the Companies (Jersey) Law 1991 (the Scheme).
Under the terms of KWHs previously announced recommended offer,
KWE shareholders would be entitled to receive, for each KWE
ordinary share, 0.667 shares of KWH common stock (the Original
Consideration). Under the terms of the New Offer Announcement,
KWE shareholders would have the option of electing to receive
either: (i)the Original Consideration; or (ii)a mixed
consideration (the New Offer) consisting of (a)300 pence in cash,
to be paid by KWH (the KWH Cash Component); (b)250 pence in cash,
to be paid by KWE as a special distribution on or around closing
of the Transaction (the KWE Special Distribution); and (c)0.3854
shares of KWH common stock. KWH will be required to publish a
prospectus in the United Kingdom in respect of the shares of KWH
common stock to be issued in connection with the New Offer (the
Prospectus). The availability of the New Offer to KWE
shareholders would be conditional upon, among other things, the
publication of and approval by the UK Listing Authority of the
Prospectus. KWH will provide a mix and match facility (the Mix
and Match Facility) under which KWE shareholders (other than
certain overseas shareholders) who elect to receive the New Offer
may, subject to off-setting elections made by other KWE
shareholders, elect to vary the proportion of shares of KWH
common stock and cash (but not the KWE Special Distribution)
received to the Transaction. Based on the terms of the New Offer
Announcement, if all KWE shareholders elected to receive the New
Offer, KWE shareholders (other than KWH and its affiliates) would
own approximately 24% and existing KWH shareholders would own
approximately 76% of the combined group following the completion
of the Transaction.
The New Offer Announcement also discloses receipt of the
Irrevocable Undertakings (as described below in this Item1.01)
and non-binding statements of support of the Transaction by
certain stockholders of KWH and shareholders of KWE (as described
below in Item8.01).
The foregoing summary of the Transaction and the New Offer
Announcement does not purport to be complete and is subject to,
and qualified in its entirety by, the full text of the New Offer
Announcement, which is included as Exhibit 2.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Irrevocable Undertakings
In connection with the Transaction, KWH has received irrevocable
undertakings (the Irrevocable Undertakings) from Quantum
Strategic Partners Ltd. (Quantum) and Franklin Templeton
Institutional, LLC (Franklin) to vote all of their KWE shares in
favor of the Scheme and other KWE shareholder resolutions
required to implement the Transaction. These shareholders hold,
in the aggregate, approximately 21.8% of the issued and
outstanding KWE shares as of June12, 2017, or approximately 28.6%
of the shares of KWE shares entitled to vote on the Transaction.
In addition, each of Quantum and Franklin has agreed to refrain
(subject to certain terms, conditions and exceptions specified in
the Irrevocable Undertakings) from: (i)selling any KWE shares
currently held by it or any further such shares it may acquire;
(ii)acquiring any KWE shares; (iii)selling any KWE shares short
or entering into any short derivative position referenced to
them; or (iv)soliciting, directly or indirectly, or initiating
discussions with a third party in connection with a competing
offer for KWE. Franklin will be permitted to sell KWE shares if
it is instructed to do so by clients on whose accounts it holds
those KWE shares.
The Irrevocable Undertakings will terminate if, among other
things, a third party announces its intention, prior to the KWE
shareholder meeting in respect of the Scheme, to make an offer
for KWE (or, in the case of Quantum, an offer for KWE or
substantially all of KWEs business and assets) which, in the
reasonable opinion of the shareholder, represents an improvement
on the New Offer.
The foregoing summary of the Irrevocable Undertakings does not
purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Irrevocable Undertakings, which
are attached as Exhibits 99.1 and 99.2, respectively, to this
Form 8-K and are incorporated herein by reference
| Item3.02. | Unregistered Sales of Equity Securities. |
The KWH shares of common stock to be issued in connection with
the Transaction will be issued to the exemption from registration
provided by Section3(a)(10) under the Securities Act of 1933, as
amended. KWH reserves the right, subject to the prior consent of
the Panel, to elect to implement the Transaction by way of a
Takeover Offer (as defined in Article 116 of the Companies
(Jersey) Law 1991), in which event, unless another exemption from
registration were available, KWH would file a registration
statement with the SEC containing a prospectus with respect to
the KWH shares of common stock that would be issued in the
Transaction.
| Item8.01 | Other Events |
Stockholder and Shareholder Statements of Intention to Vote
in Favor of Transaction
In connection with the New Offer Announcement, certain
stockholders of KWH including Fairfax Financial Holdings Limited,
Elkhorn Partners LP, as well as all of the directors and
executive officers of KWH who own shares of KWH common stock,
have expressed to KWH their intention to vote all shares of KWH
common stock beneficially owned by them in favor of any proposal
to approve the issuance of shares of KWH common stock in
connection with the Transaction. Collectively, these stockholders
own approximately 31.4% of the outstanding shares of KWH common
stock as of June12, 2017 (including 17.1% of KWHs outstanding
shares owned by directors and executive officers of KWH). These
statements of intention are not legally binding.
Also as disclosed in the New Offer Announcement, certain
shareholders of KWE affiliated with Vrde Partners, Inc. (the Vrde
Shareholders) have indicated by letter to KWH their intention to
vote all of their KWE shares in favor of the Scheme and other KWE
shareholder resolutions required to implement the Transaction
(the Vrde Letter of Intent). The Vrde shareholders hold, in the
aggregate, approximately 5.6% of the issued and outstanding KWE
shares as of June12, 2017, or approximately 7.3% of the shares of
KWE shares entitled to vote on the Transaction. The Vrde Letter
of Intent is not legally binding. The foregoing summary of the
Vrde Letter of Intent does not purport to be complete and is
subject to, and qualified in its entirety by, the full text of
the Vrde Letter of Intent, which is included as Exhibit 99.3 to
this Current Report on Form 8-K and incorporated herein by
reference.
Cash Confirmation
Under the Code, KWHs financial advisor, Goldman Sachs
International (Goldman Sachs), is required to make a public
statement (the Cash Confirmation Statement) to the UK Panel on
Takeovers and Mergers (the Panel) to the effect that KWH has
sufficient resources to satisfy the KWH Cash Component payable to
the terms of the Transaction. To enable Goldman Sachs to provide
the Cash Confirmation Statement, KWH has: (i)agreed to deposit
the KWH Cash Component payable to the shareholders of KWE into a
blocked escrow account and (ii)executed and delivered a cash
confirmation representation letter (the Cash Confirmation
Representation Letter) to Goldman Sachs.
Under the Cash Confirmation Representation Letter, KWH has given
various representations, warranties and undertakings to Goldman
Sachs in relation to the sources and availability of the funding
of the KWH Cash Component. Among other things, KWH has:
(i)represented to Goldman Sachs that it is solvent, has the power
and ability to perform its obligations under the Cash
Confirmation Representation Letter, and is not aware of any
circumstance which is likely to restrict its ability to pay the
KWH Cash Component; (ii)undertaken to provide
Goldman Sachs with such information as Goldman Sachs may
reasonably request in connection with the Transaction and its
financing; and (iii)undertaken not to, and to cause its
subsidiaries not to, take certain actions without obtaining the
prior consent of Goldman Sachs, including acquiring any KWE
shares, subject to certain exceptions, and varying the terms of
the Transaction.
| Item9.01. | Financial Statements and Exhibits |
| (d) | Exhibits |
| 2.1 | New Offer Announcement, dated June13, 2017. | |
| 99.1 |
Deed of Irrevocable Undertaking, dated June13, 2017 of Quantum Strategic Partners Ltd. |
|
| 99.2 |
Deed of Irrevocable Undertaking, dated June13, 2017 of Franklin Templeton Institutional, LLC. |
|
| 99.3 | Vrde Letter of Intent, dated June13, 2017. |
Additional Information and Where to Find It
This communication may be deemed to be solicitation material in
respect of the Transaction, including the issuance of shares of
KWH common stock in respect of the Transaction. In connection
with such proposed share issuance, KWH expects to file a proxy
statement on Schedule 14A with the Securities and Exchange
Commission (the SEC). To the extent KWH effects the Transaction
as a scheme of arrangement under Jersey law, the issuance of KWH
common stock would not be expected to require registration under
the Securities Act of 1933, as amended (the Securities Act), as a
result of an exemption provided by Section3(a)(10) under the
Securities Act. In the event that KWH determines to effect the
Transaction to a takeover offer or otherwise in a manner that is
not exempt from the registration requirements of the Securities
Act, it will file a registration statement with the SEC
containing a prospectus with respect to the shares that would be
issued in such transaction. INVESTORS AND SECURITY HOLDERS OF KWH
ARE URGED TO READ THESE MATERIALS (INCLUDING ANY AMENDMENTS OR
SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS IN
CONNECTION WITH THE TRANSACTION THAT KWH WILL FILE WITH THE SEC
WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT KWH, THE PROPOSED ISSUANCE OF KWH COMMON STOCK
AND THE TRANSACTION. The preliminary proxy statement, the
definitive proxy statement, in each case as applicable, and other
relevant materials in connection with the proposed issuance of
shares of KWH common stock and the Transaction (when they become
available), and, if required, the registration
statement/prospectus and other documents filed by KWH with the
SEC, may be obtained free of charge at the SECs website at
www.sec.gov. In addition, investors and security holders may
obtain free copies of the documents filed with the SEC at KWHs
website, ir.kennedywilson.com, or by contacting KWHs Investor
Relations department in writing at 151 S. El Camino Drive,
Beverly Hills, CA 90212.
KWH, KWE, their respective directors and certain KWH executive
officers may be deemed to be participants in the solicitation of
proxies from KWH shareholders with respect to the Transaction,
including the proposed issuance of shares of KWH common stock.
Information about KWHs directors and executive officers and their
ownership of KWH shares and KWE shares or securities referencing
KWE shares is provided in KWHs Annual Report on Form 10-K for the
fiscal year ended December31, 2016, which was filed with the SEC
on February27, 2017, KWHs proxy statement for its 2017 Annual
Meeting of Stockholders, which was filed with the SEC on April28,
2017, and KWEs Annual Report for the year ended December31, 2016,
which was filed with the SEC by KWH on Form 8-K on March23, 2017.
Information about the directors of KWE is provided in KWEs Annual
Report for the year ended December31, 2016, which was filed with
the SEC by KWH on Form 8-K on March23, 2017. Information
regarding the identity of the potential participants, and their
direct or indirect interests in the solicitation, by security
holdings or otherwise, will be provided in the proxy statement
and other materials to be filed with the SEC in connection with
the Transaction and issuance of shares of KWH common stock.
Forward-Looking Statements
This Current Report on Form 8-K, and the documents incorporated
by reference into this Current Report, contains forward-looking
statements concerning future events and financial performance.
These forward-looking statements are necessarily estimates
reflecting the judgment of senior management based on current
estimates, expectations, forecasts and projections and include
comments that express current opinions about trends and factors
that may impact future operating results. Disclosures that use
words such as believe, anticipate, estimate, intend, could, plan,
expect, project or the negative of these, as well as similar
expressions, are intended to identify forward-looking statements.
Forward-looking statements are not guarantees of future
performance, rely on a number of assumptions concerning future
events, many of which are outside of the companies control, and
involve known and unknown risks and uncertainties that could
cause actual results, performance or achievement, or industry
results, to differ materially from any future results,
performance or achievements, expressed or implied by such
forward-looking statements. No assurance can be given that the
proposed Transaction will happen as anticipated or at all. In
evaluating these statements, you should specifically consider the
risks referred to in our filings with the SEC, including our Form
10-K, which are available on our website and at www.sec.gov,
including, but not limited to, the following factors: the
occurrence of any event, change or other circumstance that could
result in abandonment of the Transaction; the inability to
complete the Transaction in a timely manner or at all, including
as a result of the failure by one or both parties to obtain the
requisite shareholder approvals; difficulties in successfully
integrating the two companies following completion of the
Transaction and the risk of not fully realizing expected
synergies from the Transaction in the time frame expected or at
all; the risk that the announcement and pendency of the
Transaction disrupts current plans and operations, increases
operating costs, results in management distraction or
difficulties in establishing and maintaining relationships with
third parties or makes employee retention and incentivization
more difficult; the outcome of any legal proceedings that may be
instituted against the companies in connection with the
announcement and pendency of the Transaction; any limitations on
the companies ability to operate their businesses during the
pendency of the Transaction; disruptions in general economic and
business conditions, particularly in geographies where the
companies respective businesses may be concentrated; volatility
and disruption of the capital and credit markets, higher interest
rates, higher loan costs, less desirable loan terms and a
reduction in the availability of mortgage loans, all of which
could increase costs and could limit the companies ability to
acquire additional real estate assets; continued high levels of,
or increases in, unemployment and general slowdowns in commercial
activity; the companies leverage and ability to refinance
existing indebtedness or incur additional indebtedness; an
increase in the companies debt service obligations; the companies
ability to generate a sufficient amount of cash from operations
to satisfy working capital requirements and to service their
existing and future indebtedness; the companies ability to
achieve improvements in operating efficiency; foreign currency
fluctuations; adverse changes in the securities markets; the
companies ability to retain their senior management and attract
and retain qualified and experienced employees; the companies
ability to retain major clients and renew related contracts;
trends in use of large, full-service commercial real estate
providers; changes in tax laws in the United States, Europe or
Japan or other jurisdictions that reduce or eliminate deductions
or other tax benefits the companies receive; the possibility that
future acquisitions may not be available at favorable prices or
upon advantageous terms and conditions; the companies ability to
dispose of assets; and costs relating to the acquisition of
assets the companies may acquire could be higher than
anticipated. Except as required by law, KWH does not intend to
update publicly any forward-looking statements, whether as a
result of new information, future events, changes in assumptions
or otherwise.
About KENNEDY-WILSON HOLDINGS, INC. (NYSE:KW)
Kennedy-Wilson Holdings, Inc. is a global real estate investment company. The Company owns, operates and invests in real estate. The Company focuses on multifamily and commercial properties located in the Western United States, the United Kingdom, Ireland, Spain, Italy and Japan. The Company also provides real estate services primarily to financial services clients. The Company operates in two business segments: KW Investments and KW Services. KW Investments invests its capital in real estate-related assets. KW Services provides an array of real estate-related services to the Company and its investment partners, third-party owners, and lenders, with a focus on financial institution based clients. KW Services has five main lines of business: investment management, property services, research, brokerage, and auction and conventional sales. The Company has an ownership interest in approximately 39 million square feet of property globally, including over 24,370 multifamily rental units.