Item 8.01 Other Events.
On May 6, 2022, Kennedy-Wilson Holdings, Inc. (the “Company”) entered into a distribution agreement (the “Distribution Agreement”) with J.P. Morgan Securities LLC, BofA Securities, Inc., Deutsche Bank Securities Inc. and Evercore Group L.L.C. (each, an “agent” and, collectively, the “agents”), and the forward purchasers (as defined below), providing for the offer and sale of shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), having an aggregate gross sales price of up to $200 million through the agents, as its sales agents or, if applicable, as forward sellers (as defined below), or directly to the agents acting as principals. The program does not obligate the Company to offer and sell any specific number of shares, or any shares at all, and, subject to compliance with applicable laws and the terms of the Distribution Agreement, may be suspended or terminated any time.
Sales of shares of Common Stock, if any, made through the agents, as the Company’s sales agents or, if applicable, as forward sellers pursuant to the Distribution Agreement, may be made in sales deemed to be “at-the-market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), including (1) by means of ordinary brokers’ transactions on the New York Stock Exchange at market prices prevailing at the time of sale, in negotiated transactions or as otherwise agreed by the Company, the applicable agent and the applicable investor, (2) to or through any market maker or (3) on or through any other national securities exchange or facility thereof, trading facility of a securities association or national securities exchange, alternative trading system, electronic communication network or other similar market venue.
The agents are not required to sell any specific number or dollar amount of shares of the Company’s Common Stock but will use their commercially reasonable efforts consistent with the their normal trading and sales practices as the Company’s sales agents or as forward sellers and subject to the terms of the Distribution Agreement and, in the case of shares offered through such agents as forward sellers, the relevant forward sale agreement to sell the shares of the Company’s Common Stock, as instructed by the Company, and, in the case of shares offered through such agents as forward sellers, the relevant forward purchaser. The shares of the Company’s Common Stock offered and sold through the agents, as its sales agents or as forward sellers, pursuant to the Distribution Agreement will be offered and sold through only one agent on any given day.
Each agent will receive from the Company a commission that will not exceed, but may be lower than, 2.0% of the gross sales price of shares of the Company’s Common Stock sold through it as its sales agent. Under the terms of the Distribution Agreement, the Company may also sell shares of its Common Stock to each of the agents, as principal, at a price agreed upon at the time of sale. If the Company sells shares of its Common Stock to any agent as principal, the Company will enter into a separate terms agreement with the agent, setting forth the terms of such transaction, and the Company will describe the agreement in a separate prospectus supplement or pricing supplement. In connection with each forward sale agreement, the Company will pay the applicable agent, acting as forward seller, a commission, in the form of a reduction to the initial forward price under the related forward sale agreement, at a mutually agreed rate that will not (except as provided below) exceed, but may be lower than, 2.0% of the gross sales price per share of the borrowed shares of Common Stock sold through such agent, as forward seller, during the applicable forward selling period for such shares (subject to certain possible adjustments to such gross sales price for daily accruals reflecting the funding cost embedded in the initial forward price and any quarterly dividends having an “ex-dividend” date during such forward selling period).
The Distribution Agreement contemplates that, in addition to the issuance and sale by the Company of shares of its Common Stock to or through the agents, the Company may enter into separate forward sale agreements, with each of JPMorgan Chase Bank, National Association, Bank of America, N.A. and Deutsche Bank AG, London Branch, or one of their respective affiliates (in such capacity, each, a “forward purchaser,” and collectively, the “forward purchasers”). If the Company enters into a forward sale agreement with any forward purchaser, the Company expects that such forward purchaser (or its affiliate) will attempt to borrow from third parties and sell, through the relevant affiliate agent, acting as sales agent for such forward purchaser, shares of Common Stock to hedge such forward purchaser’s exposure under such forward sale agreement. The Company will not initially receive any proceeds from any sale of shares of its Common Stock borrowed by a forward purchaser (or its affiliate) and sold through a forward seller.
