0001408100false00014081002024-02-162024-02-16
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):
February 16, 2024
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KENNEDY-WILSON HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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001-33824 |
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26-0508760 |
(State or other jurisdiction of Incorporation) |
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(Commission File Number) |
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(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)
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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))
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 |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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; Appointments of Certain Officers; Compensatory Arrangement of Certain Officers.
Annual Restricted Stock Unit Grants
On February 16, 2024, the Compensation Committee of the Board of Directors (the “Compensation Committee”) of Kennedy-Wilson Holdings, Inc. (the “Company”), with advice from its independent compensation consultant (Ferguson Partners Consulting, L.P.), approved a grant of annual equity awards comprised of performance-based restricted stock units subject to vesting based on the Company’s total shareholder return (the “TSR restricted stock units”), performance-based restricted stock units subject to vesting based on the Company’s return on invested assets (the “ROIA restricted stock units”), and time-based restricted stock units (the “time-based restricted stock units”) (collectively, the “annual awards”), under the Company’s Second Amended and Restated 2009 Equity Participation Plan (the “Plan”) to certain of the Company’s named executive officers (the “executives”). Under the Company’s rigorous performance goals applicable to equity awards previously granted to our executives, approximately 13% of the potential maximum number of shares eligible to vest in 2024 (and prior to February 16, 2024) vested.
The following is a brief description of the material terms and conditions of the annual awards.
TSR Restricted Stock Units
General. Pursuant to the TSR restricted stock unit awards, each executive is eligible to vest in a number of restricted stock units ranging from 0% to 100% of the total number of TSR restricted stock units granted, based on the Company’s total shareholder return during the three-year performance period commencing February 16, 2024 and ending February 15, 2027 relative to the total shareholder return of the MSCI World Real Estate GICS 1 Net Total Return USD Index (MXWO0RL) (the “MSCI Index Relative Performance”), subject to the executive’s continued employment with the Company and its affiliates through the TSR vesting date (as defined below). Each vested TSR restricted stock unit represents the right to receive payment in the form of one share of common stock of the Company.
Vesting. Up to 100% of the TSR restricted stock units will be eligible to vest based on the MSCI Index Relative Performance during the performance period, with the actual number of TSR restricted stock units that vest and cease to be subject to restrictions with respect to the performance period determined by multiplying (i) the total number of TSR restricted stock units subject to the award by (ii) the applicable vesting percentage, as set forth below:
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MSCI Index Relative Performance |
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Vesting Percentage |
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Less than -1,200 basis points |
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0% |
Threshold Level |
-1,200 basis points |
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25.0% |
Target Level |
0 basis points |
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50.0% |
Maximum Level |
1,200 basis points or greater |
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100.0% |
In the event that the MSCI Index Relative Performance for the performance period falls between the levels specified above, the percentage of TSR restricted stock units that vest will be determined using straight line linear interpolation between such levels.
Notwithstanding the foregoing, in no event shall the vesting percentage exceed 75% if the Company fails to achieve absolute total shareholder return (as defined in the applicable award agreement) of 20% or greater as of the end of the performance period.
Following the completion of the performance period, the Compensation Committee will determine the MSCI Index Relative Performance, the absolute total shareholder return and the number of TSR restricted stock units that have become vested with respect to such performance period (the date of such determination by the Compensation Committee, the “TSR vesting date”). Any TSR restricted stock units that have not become vested as of the TSR vesting date will be forfeited without consideration therefore and the executive will have no further right or interest in or with respect to such TSR restricted stock units.
Distribution Equivalent Rights. The TSR restricted stock units were granted in tandem with distribution equivalent rights that, during the period from the grant date until the earlier of the date of payment, forfeiture or other termination of the TSR restricted stock units to which such distribution equivalent rights relate, will entitle the applicable executive to receive an amount equal to the dividends declared on the Company’s common stock underlying the TSR restricted stock units; provided, however, that any payments made with respect to such distribution equivalent rights will not be paid to the applicable executive on a current basis, but will instead accumulate and be paid to the executive in a lump sum on the date (if any), and only to the extent, that the underlying TSR restricted stock units vest.
No-Sale Period; Transferability. The TSR restricted stock units generally will not be transferable unless and until such restricted stock units vest and the underlying shares have been issued. In addition, notwithstanding the foregoing, the applicable executive may not, without the consent of the Compensation Committee (which may be withheld in its sole discretion), transfer, sell or otherwise dispose of any vested TSR restricted stock units or any of the shares of the Company’s common stock underlying the TSR restricted stock units prior to the earlier to occur of (i) the third anniversary of the date on which such restricted stock units vest, or (ii) the occurrence of a change of control of the Company. The transfer restrictions described in the preceding sentence will not apply to any transfer of shares to the Company, any transfer of shares in satisfaction of applicable withholding obligations with respect to the restricted stock units, or any transfer following the termination of the executive’s employment with the Company and its affiliates (including by will or pursuant to the laws of descent and distribution).
Certain Terminations of Employment. If the applicable executive’s employment terminates due to the executive’s death or total and permanent disability, any then-unvested TSR restricted stock units will remain outstanding and eligible to vest on the TSR vesting date based on the MSCI Index Relative Performance for the performance period, as may be modified based on the Company’s absolute total shareholder return (without regard to the requirement that the executive continue in employment with the Company and/or its affiliates through such TSR vesting date).
Except as otherwise described above or as otherwise provided in a written agreement between the executive and the Company, any TSR restricted stock units that have not vested as of the date on which the applicable executive’s employment terminates for any reason will be cancelled and forfeited by the executive without consideration therefor, and the executive will have no further right or interest in or with respect such restricted stock units.
Change of Control. In the event of a change of control of the Company, all then-unvested TSR restricted stock units (calculated assuming the MSCI Index Relative Performance for the performance period is attained at target level) will vest in full as of the date of the change in control, subject to the executive’s continued employment until at least immediately prior to the change of control.
Payment. Any TSR restricted stock units that become vested will be paid to the executive in whole shares of Company common stock within 30 days after the applicable vesting date.
Awards. The following amounts represent the number of TSR restricted stock units that would vest at “target level” for each of the awards granted to the executives: William J. McMorrow – 327,246 units; Matt Windisch – 213,887; and Justin Enbody – 106,944 units.
The foregoing summary is qualified in its entirety by reference to the full text of the Total Shareholder Return Performance-Based Employee Restricted Stock Unit Award Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
ROIA Restricted Stock Units
General. Pursuant to the ROIA restricted stock unit awards, each executive is eligible to vest in an aggregate number of restricted stock units ranging from 0% to 100% of the total ROIA restricted stock units granted, based on the Company’s “return on invested assets” (as defined in the applicable award agreement) during each year of a three-year performance period commencing January 1, 2024 and ending December 31, 2026 (the “performance period”). Each vested ROIA restricted stock unit represents the right to receive payment in the form of one share of common stock of the Company.
Vesting. Up to one-third of the total ROIA restricted stock units will be eligible to vest with respect to each Company fiscal year of the performance period (each, a “performance year”) to the extent that the Company satisfies the return on invested assets goals described below for such performance year, subject to the executive’s continued employment with the Company and its affiliates through the applicable ROIA vesting date (as defined below), with the actual number of ROIA restricted stock units that vest and cease to be subject to restrictions with respect to any performance year determined by multiplying (i) one-third of the total ROIA restricted stock units subject to the award by (ii) the applicable “vesting percentage,” as set forth below:
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Return on Invested Assets |
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Vesting Percentage |
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Less than 4.8% |
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0% |
Threshold Level |
4.8% |
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25.0% |
Target Level |
5.2% |
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50.0% |
Maximum Level |
5.6% or greater |
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100% |
In the event that the Company’s return on invested assets for any performance year falls between the levels specified above, the percentage of ROIA restricted stock units that vest with respect to such performance year will be determined using straight line linear interpolation between such levels.
Notwithstanding the foregoing, in no event shall the vesting percentage exceed 75% for any performance year if the Company’s absolute total shareholder return as of the end of such performance year falls below the applicable absolute total shareholder return goal set forth below:
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Performance Year Ending: |
Absolute Total Shareholder Return Goal |
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Period Over Which Absolute Total Shareholder Return is Measured |
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December 31, 2024 |
7.0% |
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January 1, 2024 – December 31, 2024 |
December 31, 2025 |
14.0% |
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January 1, 2024 – December 31, 2025 |
December 31, 2026 |
21.0% |
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January 1, 2024 – December 31, 2026 |
Following the completion of each performance year, the Compensation Committee will determine the extent to which the Company’s return on invested assets goals and absolute shareholder return goals were satisfied and the number of ROIA restricted stock units that have become vested with respect to such performance year (the date of any such determination by the Compensation Committee, the “ROIA vesting date”).
To the extent that the vesting requirements described above are not satisfied with respect to any performance year, the ROIA restricted stock units subject to vesting with respect to such performance year will be forfeited as of the applicable ROIA vesting date without consideration therefor and the executive will have no further right or interest in or with respect to such ROIA restricted stock units.
Distribution Equivalent Rights. The ROIA restricted stock units were granted in tandem with distribution equivalent rights that, during the period from the grant date until the earlier of the date of payment, forfeiture or other termination of the ROIA restricted stock units to which such distribution equivalent rights relate, will entitle the applicable executive to receive an amount equal to the dividends declared on the Company’s common stock underlying the ROIA restricted stock units; provided, however, that any payments made with respect to such distribution equivalent rights will not be paid to the applicable executive on a current basis, but will instead accumulate and be paid to the executive in a lump sum on the date (if any), and only to the extent, that the underlying ROIA restricted stock units vest.
No-Sale Period; Transferability. The ROIA restricted stock units generally will not be transferable unless and until such restricted stock units vest and the underlying shares have been issued. In addition, notwithstanding the foregoing, the applicable executive may not, without the consent of the Compensation Committee (which may be withheld in its sole discretion), transfer, sell or otherwise dispose of any vested ROIA restricted stock units or any of the shares of the Company’s common stock underlying the ROIA restricted stock units prior to the earlier to occur of (i) the third anniversary of the date on which such restricted stock units vest, or (ii) the occurrence of a change of control of the Company. The transfer restrictions described in the preceding sentence will not apply to any transfer of shares to the Company, any transfer of shares in satisfaction of applicable withholding obligations with respect to the restricted stock units, or any transfer following the termination of the executive’s employment with the Company and its affiliates (including by will or pursuant to the laws of descent and distribution).
Certain Terminations of Employment. If the applicable executive’s employment terminates due to the executive’s death or total and permanent disability, any then-unvested ROIA restricted stock units will remain outstanding and eligible to vest on each subsequent ROIA vesting date to the extent that the Company satisfies the return on invested assets goals described above for the applicable performance year, as may be modified based on the Company’s absolute total shareholder return (without regard to the requirement that the executive continue in employment with the Company and/or its affiliates through such ROIA vesting date).
Except as described above or as otherwise provided in a written agreement between the executive and the Company, any ROIA restricted stock units that have not vested as of the date on which the applicable executive’s employment terminates for any reason will be cancelled and forfeited by the executive without consideration therefor, and the executive will have no further right or interest in or with respect such restricted stock units.
Change of Control. In the event of a change of control of the Company, all then-unvested ROIA restricted stock units (calculated assuming the Company’s return on invested assets for each remaining performance year of the performance period is attained at target level) will vest in full as of the date of the change of control, subject to the executive’s continued employed until at least immediately prior to the change of control.
Payment. Any ROIA restricted stock units that become vested will be paid to the executive in whole shares of Company common stock within 30 days after the applicable vesting date.
Awards. The following amounts represent the number of ROIA restricted stock units that would vest at “target level” for each of the awards granted to the executives: William J. McMorrow – 327,246 units; and Matt Windisch – 213,887; Justin Enbody – 106,944 units.
The foregoing summary is qualified in its entirety by reference to the full text of the Return on Invested Assets Performance-Based Employee Restricted Stock Unit Award Agreement, a copy of which is attached hereto as Exhibit 10.2 and incorporated by reference herein.
Time-Based Restricted Stock Units
General. Pursuant to the time-based restricted stock awards, each executive is eligible to vest in a number of restricted stock units based on the executive’s continued service. Each vested time-based restricted stock unit represents the right to receive payment in the form of one share of common stock of the Company.
Vesting. One-third of the time-based restricted stock units will vest on each of the first three anniversaries of February 16, 2024, subject to the executive’s continued employment with the Company and its affiliates through the applicable vesting date.
Distribution Equivalent Rights. The time-based restricted stock units were granted in tandem with distribution equivalent rights that, during the period from the grant date until the earlier of the date of payment, forfeiture or other termination of the time-based restricted stock units to which such distribution equivalent rights relate, will entitle the applicable executive to receive an amount equal to the dividends declared on the Company’s common stock underlying the time-based restricted stock units; provided, however, that any payments made with respect to such distribution equivalent rights will not be paid to the applicable executive on a current basis, but will instead accumulate and be paid to the executive in a lump sum on the date (if any), and only to the extent, that the underlying time-based restricted stock units vest.
No-Sale Period; Transferability. The time-based restricted stock units generally will not be transferable unless and until such restricted stock units vest and the underlying shares have been issued. In addition, notwithstanding the foregoing, the applicable executive may not, without the consent of the Compensation Committee (which may be withheld in its sole discretion), transfer, sell or otherwise dispose of any vested time-based restricted stock units or any of the shares of the Company’s common stock underlying the time-based restricted stock units prior to the earlier to occur of (i) the third anniversary of the date on which such restricted stock units vest, or (ii) the occurrence of a change of control of the Company. The transfer restrictions described in the preceding sentence will not apply to any transfer of shares to the Company, any transfer of shares in satisfaction of applicable withholding obligations with respect to the restricted stock units, or any transfer following the termination of the executive’s employment with the Company and its affiliates (including by will or pursuant to the laws of descent and distribution).
Certain Terminations of Employment. If the applicable executive’s employment terminates due to the executive’s death or “total and permanent disability” (as defined in the Plan), any then-unvested time-based restricted stock units will become fully vested as of the date of such death or disability.
Except as described above or as otherwise provided in a written agreement between the executive and the Company, any time-based restricted stock units that have not vested as of the date on which the executive’s employment terminates for any reason will be cancelled and forfeited by the executive without consideration therefor, and the executive will have no further right or interest in or with respect such restricted stock units.
Change of Control. In the event of a change of control of the Company (as defined in the Plan), all then-unvested time-based restricted stock units will vest in full as of the date of the change of control, subject to the executive’s continued employed with the Company and its affiliates until at least immediately prior to the change of control.
Payment . Any time-based restricted stock units that become vested will be paid to the executive in whole shares of Company common stock within 30 days after the applicable vesting date.
Awards . The executives were awarded the following number of time-based restricted stock units: William J. McMorrow – 327,246 units; Matt Windisch – 213,887; and Justin Enbody – 106,944 units.
The foregoing summary is qualified in its entirety by reference to the full text of the Time-Based Employee Restricted Stock Unit Award Agreement, a copy of which is attached hereto as Exhibit 10.3 and incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits
The following Exhibits are filed as part of this Current Report on Form 8-K.
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Exhibit No. |
Description |
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10.1 |
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10.2 |
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10.3 |
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104 |
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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. |
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By: |
/s/ JUSTIN ENBODY |
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Justin Enbody |
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Chief Financial Officer |
Date: February 16, 2024
EX-10.3
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a3-yeartimexvestrsuawardag.htm
EX-10.3
Document
Exhibit 10.3
KENNEDY-WILSON HOLDINGS, INC.
SECOND AMENDED AND RESTATED 2009 EQUITY PARTICIPATION PLAN
EMPLOYEE RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS AGREEMENT (this “Agreement”), is made effective as of February [__], 2024 (the “Effective Date”), by and between Kennedy-Wilson Holdings, Inc., a Delaware corporation (the “Company”), and [__________] (the “Awardee”).
WITNESSETH:
WHEREAS, the Company has adopted the Kennedy-Wilson Holdings, Inc. Second Amended and Restated 2009 Equity Participation Plan (as may be amended from time to time, the “Plan”) for the benefit of its employees, nonemployee directors and consultants and the employees, nonemployee directors and consultants of its affiliates, and
WHEREAS, the Committee has authorized the award to the Awardee of Restricted Stock Units (“Restricted Stock Units”) under the Plan, on the terms and conditions set forth in the Plan and as hereinafter provided.
NOW, THEREFORE, in consideration of the premises contained herein, the Company and the Awardee hereby agree as follows:
1.Definitions.
To the extent not defined herein, terms used in this Agreement which are defined in the Plan shall have the same meanings as set forth in the Plan.
2.Award of Restricted Stock Units.
The Committee hereby awards to the Awardee [_______] Restricted Stock Units. All such Restricted Stock Units shall be subject to the restrictions and forfeiture provisions contained in Sections 3, 4 and 6, such restrictions and forfeiture provisions to become effective immediately upon execution of this Agreement by the parties hereto. As of the date on which a Restricted Stock Unit vests, subject to the satisfaction of the applicable vesting requirements provided in this Agreement, such vested Restricted Stock Unit represents the right to receive payment, in accordance with Section 5 below, in the form of one (1) share of Common Stock. Unless and until a Restricted Stock Unit vests, the Awardee will have no right to payment in respect of any such Restricted Stock Unit. Prior to actual payment in respect of any vested Restricted Stock Unit, such Restricted Stock Unit will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
3.Vesting.
Subject to Sections 4 and 6 below, one-third (1/3rd) of the Restricted Stock Units (with any fractional Restricted Stock Unit rounded as determined by the Company) shall vest and no longer be subject to Restrictions pursuant to the terms of this Agreement and the Plan on each of the first three (3) anniversaries of the Vesting Commencement Date (defined below) (each such date, a “Vesting Date”), subject to the Awardee’s continued employment with the Company or an Affiliate through the applicable Vesting Date.
For purposes of this Agreement, “Vesting Commencement Date” shall mean February [__], 2024.
Notwithstanding the foregoing, in the event that a Change of Control occurs and the Awardee remains in continued employment with the Company or an Affiliate thereof until at least immediately prior to the Change of Control, all of the then-unforfeited Restricted Stock Units shall automatically become fully vested and no longer subject to Restrictions as of the date of such Change of Control.
4.Termination of Employment.
Notwithstanding the foregoing, the following provisions shall apply in the event that the Awardee’s employment with the Company and its Affiliates terminates prior to the Awardee fully satisfying any of the vesting requirements set forth in Section 3:
(a)If the Awardee’s employment with the Company and its Affiliates shall be terminated by reason of the Awardee’s death or Total and Permanent Disability, in any such event, all then-unforfeited Restricted Stock Units subject to vesting thereafter shall automatically become fully vested and no longer subject to Restrictions as of the date of such termination of employment; or
(b)If the Awardee’s employment with the Company and its Affiliates shall be terminated for any reason other than as set forth in Section 4(a), then except as otherwise set forth in a written agreement between the Awardee and the Company or an Affiliate thereof, all of the Awardee’s then-unforfeited Restricted Stock Units shall thereupon be cancelled and forfeited as of the date of such termination of employment without consideration therefor, and the Awardee shall have no further right or interest in or with respect to such Restricted Stock Units.
5.Payment of Restricted Stock Units.
Payment in respect of any Restricted Stock Units that vest in accordance with Section 3 or 4 above shall be made to the Awardee in shares of Common Stock as soon as administratively practicable following the applicable date on which such Restricted Stock Units vest, but in no event later than thirty (30) days after such date, either by delivering one or more certificates for such shares of Common Stock or by entering such shares of Common Stock in book entry form, as determined by the Committee in its sole discretion.
6.Restriction on Transferability.
Except as otherwise provided in the Plan and subject to Section 4, neither the Restricted Stock Units nor any interest or right therein shall or may be assigned, transferred, sold, exchanged, encumbered, pledged or otherwise hypothecated or disposed of by the Awardee unless and until (and solely to the extent) the Awardee satisfies the vesting requirements contained in Section 3 or 4 (as applicable), the shares of Common Stock underlying the Restricted Stock Units have been issued, and all restrictions upon such shares have lapsed. In addition, notwithstanding anything herein or in the Plan to the contrary, the Awardee shall not, without the consent of the Committee (which may be withheld in its sole discretion), sell, pledge, assign, hypothecate, transfer, or otherwise dispose of (collectively, “Transfer”) the Restricted Stock Units or any shares of Common Stock underlying the Restricted Stock Units prior to the earlier to occur of (a) the third (3rd) anniversary of the date on which the Restricted Stock Units become vested under Section 3 or 4 and (b) the occurrence of a Change of Control (the “Transfer Restrictions”); provided, however, that the Transfer Restrictions shall not apply to (i) any Transfer of shares to the Company, (ii) any Transfer of shares in satisfaction of any withholding obligations with respect to the Restricted Stock Units, or (iii) any Transfer following the termination of the Awardee’s employment with the Company and its Affiliates, including without limitation by will or pursuant to the laws of descent and distribution.
Any Transfer of the Restricted Stock Units or any shares of Common Stock underlying the Restricted Stock Units which is not made in compliance with the Plan and this Agreement shall be null and void and of no effect.
7.Voting and Distribution Equivalent Rights.
The Awardee shall not have any rights or privileges of a stockholder of Common Stock (including, without limitation, dividend and voting rights) with respect to the Restricted Stock Units unless and until the shares of Common Stock underlying the Restricted Stock Units have been issued by the Company and are held by Awardee. Notwithstanding the foregoing, the Restricted Stock Units are granted in tandem with Distribution Equivalent Rights that, during the period from the Effective Date until the earlier of the date of payment, forfeiture or other termination of the Restricted Stock Units to which such Distribution Equivalent Rights relate, shall entitle the Awardee to receive an amount equal to the dividends declared on the Common Stock as if the Awardee were an actual stockholder with respect to the number of shares of Common Stock underlying the Restricted Stock Units; provided, however, that any payments made with respect to such Distribution Equivalent Rights shall not be paid to the Awardee on a current basis, but shall instead accumulate and be paid to the Awardee in a lump sum on the date (if any), and only to the extent, that the Restricted Stock Units to which such Distribution Equivalent Rights relate vest and the shares of Common Stock underlying such vested Restricted Stock Units are issued to the Awardee. The Distribution Equivalent Rights and any amounts that may become distributable in respect thereof shall be treated separately from the Restricted Stock Units and the rights arising in connection therewith for purposes of Section 409A of the Code (including for purposes of the designation of time and form of payments required by Section 409A of the Code).
8.Regulation by the Committee.
This Agreement and the Restricted Stock Units shall be subject to the administrative procedures and rules as the Committee shall adopt. All decisions of the Committee upon any question arising under the Plan or under this Agreement, shall be conclusive and binding upon the Awardee, including, without limitation, any question relating to the vesting conditions set forth in Sections 3 and 4.
9.Withholding.
The Company and its Affiliates shall be entitled to deduct and withhold the minimum amount necessary in connection with the Awardee’s Restricted Stock Units to satisfy its withholding obligations under any and all federal, state and/or local tax rules or regulations.
10.Amendment.
The Committee may amend this Agreement at any time and from time to time; provided, however, that no amendment of this Agreement that would impair the Awardee’s rights or entitlements with respect to the Restricted Stock Units shall be effective without the prior written consent of the Awardee.
11.Plan Terms.
The terms of the Plan are hereby incorporated herein by reference.
12.Effective Date of Award.
The award of Restricted Stock Units under this Agreement shall be effective as of the Effective Date.
13.Not a Contract of Employment.
Nothing in this Agreement or in the Plan shall confer upon Awardee any right to continue to serve as an employee of the Company or any of its Affiliates.
14.Code Section 409A.
To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision of this Agreement to the contrary, in the event that following the Effective Date, the Company determines that the Restricted Stock Units may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued after the Effective Date), the Company may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect ), or take any other actions, that the Company determines are necessary or appropriate to (a) exempt the Restricted Stock Units from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Restricted Stock Units, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance; provided, however, that this Section 14 shall not create any obligation on the part of the Company or any Affiliate thereof to adopt any such amendment, policy or procedure or take any such other action. For purposes of Section 409A of the Code, any right to a series of payments pursuant to this Agreement shall be treated as a right to a series of separate payments.
15.Awardee Acknowledgment.
By executing this Agreement, the Awardee hereby acknowledges that he or she has received and read the Plan and this Agreement and that he or she agrees to be bound by all of the terms of both the Plan and this Agreement.
[Signature page follows]
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of the date first above written.
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AWARDEE: |
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KENNEDY-WILSON HOLDINGS, INC. |
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________________________________
[________]
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By:
Its:
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