UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 1, 2013
KKR Financial Holdings LLC
(Exact Name of Registrant as specified in its charter)
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Delaware |
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001-33437 |
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11-3801844 |
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(State or other Jurisdiction |
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(Commission File Number) |
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(I.R.S. Employer |
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555 California Street, 50 Floor, San Francisco, California |
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94104 |
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(Address of principal executive office) |
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(Zip Code) |
415-315-3620
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 Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13.e-4(c))
Item 8.01 Other Events.
On March 1, 2013, KKR Financial Holdings LLC (the “Company”) filed a prospectus supplement, dated March 1, 2013 (the “Prospectus Supplement”), to the prospectus contained in the Company’s Registration Statement on Form S-3 (Registration No. 333-167479), as amended by the post-effective amendment to the registration statement dated November 7, 2011. The Prospectus Supplement relates to the public offering of 114,880 of the Company’s common shares following the vesting of previously awarded restricted share grants (the “Vesting”), of which 30,000 common shares are being offered by the Company to fund certain withholding taxes (as described below) and 84,880 common shares are being offered by certain selling shareholders of the Company.
The Company expects to use substantially all of the net proceeds from the sale of the 30,000 common shares offered by the Company pursuant to the Prospectus Supplement to fund the purchase of a substantially equivalent number of common shares from certain of the Company’s executive officers for the purpose of satisfying withholding taxes incurred by such executive officers as a result of the Vesting.
In connection with the shares being offered under the Prospectus Supplement (the “Common Shares”), a legal opinion was rendered related to the validity of the Common Shares, which legal opinion is attached as Exhibit 99.1 hereto.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
The following documents are attached as exhibits to this Current Report on Form 8-K:
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Exhibit |
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Description |
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99.1 |
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Opinion of Richards, Layton & Finger, P.A., relating to the validity of the Common Shares |
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99.2 |
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Consent of Richards, Layton & Finger, P.A. (Contained in Exhibit 99.1) |
“Safe Harbor” Statement Under the Private Securities Litigation Reform Act of 1995: This current report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements are based on information available to the Company as of the date of this current report and actual results may differ. These forward-looking statements involve known and unknown risks, uncertainties and other factors beyond the Company’s control. Any forward-looking statements speak only as of the date of this current report and the Company expressly disclaims any obligation to update or revise any of them to reflect actual results, any changes in expectations or any change in events. If the Company does update one or more forward-looking statements, no inference should be drawn that it will make additional updates with respect to those or other forward-looking statements or additional information concerning risks, uncertainties and other factors that may cause actual results to differ from those anticipated in the forward-looking statements, and risks to the Company’s business in general, please refer to the Company’s SEC filings, including its preliminary prospectus supplement, filed with the SEC on the date hereof, and its Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed with the SEC on February 28, 2013.
SIGNATURE
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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KKR FINANCIAL HOLDINGS LLC | |
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By: |
/s/ MICHAEL R. MCFERRAN |
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Name: |
Michael R. McFerran |
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Title: |
Chief Financial Officer |
Date: March 1, 2013
Exhibit 99.1
[Letterhead of Richards, Layton & Finger, P.A.]
March 1, 2013
KKR Financial Holdings LLC
555 California Street, 50th Floor
San Francisco, California 94104
Re: KKR Financial Holdings LLC
Ladies and Gentlemen:
We have acted as special Delaware counsel for KKR Financial Holdings LLC, a Delaware limited liability company (the “Company”), in connection with the matters set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following:
(a) The Certificate of Formation of the Company, dated January 17, 2007 (the “LLC Certificate”), as filed in the office of the Secretary of State of the State of Delaware (the “Secretary of State”) on January 17, 2007;
(b) The Operating Agreement of the Company, dated as of January 17, 2007, entered into by KKR Financial Corp., as the sole member of the Company (the “Initial Member”);
(c) The Amended and Restated Operating Agreement of the Company, dated as of May 3, 2007, as amended effective March 24, 2009, among KKR Financial Advisors LLC (the “Manager”), the Initial Member, and the other Persons who become members in the Company, as further amended by Amendment No. 1 thereto, dated as of February 28, 2010, as further amended by Amendment No. 2 thereto, effective as of January 10, 2013, and as further amended by the Share Designation, effective as of January 17, 2013 (as so amended, the “Operating Agreement”);
(d) Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 (Registration No. 333-167479), as filed with the Securities and Exchange Commission (the “Commission”) on November 7, 2011 (the “Registration Statement), including a related prospectus, dated November 7, 2011 (the “Prospectus”), relating to the registration of, among other securities, common shares representing limited liability company interests in the Company (each, a “Common Share” and collectively, the “Common Shares”);
KKR Financial Holdings LLC
March 1, 2013
(e) The Prospectus Supplement, dated March 1, 2013 (the “Prospectus Supplement”), relating to the registration of 30,000 Common Shares offered by the Company (each, a “New Common Share” and collectively, the “New Common Shares”) and 84,880 Common Shares offered by the selling shareholders referred to therein (each, a “Selling Shareholder Common Share” and collectively, the “Selling Shareholder Common Shares”);
(f) The Directors’ Consent to Action in Lieu of a Meeting of the Company, dated May 4, 2007 (the “May 2007 Board Resolutions”), authorizing the issuance of up to 8,089,625 Common Shares pursuant to the 2007 Share Incentive Plan (as defined below);
(g) The 2007 Share Incentive Plan for the Company (as amended and restated effective May 4, 2007) (the “2007 Share Incentive Plan”);
(h) The Minutes of the Meeting of the Compensation Committee of the Board of Directors of the Company held on December 1, 2010 (the “December 1 Minutes”), relating to, inter alia, the issuance of 42,684 Selling Shareholder Common Shares (the “2011 Selling Shareholder Common Shares”);
(i) The Minutes of the Meeting of the Board of Directors of the Company held on December 9, 2010 (the “December 9 Minutes”), relating to, inter alia, the issuance of the 2011 Selling Shareholder Common Shares;
(j) The Minutes of the Meeting of the Compensation Committee of the Board of Directors of the Company held on December 13, 2010, (together with the December 1 Minutes and the December 9 Minutes, the “2010 Minutes”), relating to, inter alia, the issuance of the 2011 Selling Shareholder Common Shares;
(k) The Restricted Share Award Agreement, dated as of January 21, 2011 (the “2011 Award Agreement”), between the Company and the Manager, relating to the issuance of the 2011 Selling Shareholder Common Shares pursuant to the 2007 Share Incentive Plan;
(l) Resolutions of the Board of Directors of the Company, duly adopted by the Board of Directors of the Company at a meeting of the Board of Directors of the Company held on February 3, 2011 (the “February 2011 Board Resolutions”), relating to the authorization for issuance of the New Common Shares;
(m) The Minutes of the Meeting of the Compensation Committee of the Board of Directors of the Company held on November 14, 2011, (the “November 14 Minutes”), relating to, inter alia, the issuance of 42,196 Selling Shareholder Common Shares (the “2012 Selling Shareholder Common Shares”);
(n) The Minutes of the Meeting of the Compensation Committee of the Board of Directors of the Company held on December 12, 2011, (together with the November 14
KKR Financial Holdings LLC
March 1, 2013
Minutes, the “2011 Minutes”), relating to, inter alia, the issuance of the 2012 Selling Shareholder Common Shares;
(o) The Restricted Share Award Agreement, dated as of January 13, 2012 (the “2012 Award Agreement”), between the Company and the Manager, relating to the issuance of the 2012 Selling Shareholder Common Shares pursuant to the 2007 Share Incentive Plan;
(p) Resolutions of the Compensation Committee of the Board of Directors of the Company, duly adopted by the Compensation Committee of the Board of Directors of the Company on February 27, 2013 by electronic transmission (the “February 2013 Compensation Committee Resolutions”), relating to the authorization for issuance of 30,000 New Common Shares;
(q) An Officer’s Certificate of the Company, dated as of March 1, 2013, as to certain matters; and
(r) A Certificate of Good Standing for the Company, dated March 1, 2013, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are used as defined in the Operating Agreement.
For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (r) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (r) above) that is referred to in or incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the LLC Certificate, the Operating Agreement, the May 2007 Board Resolutions, the 2007 Share Incentive Plan, the 2010 Minutes and the 2011 Award Agreement were in full force and effect and had not been amended as of the date on which the 2011 Selling Shareholder Common Shares were issued by the Company, (ii) that the LLC Certificate, the Operating Agreement, the May 2007 Board Resolutions, the 2007 Share Incentive Plan, the 2011 Minutes and the 2012 Award Agreement were in full force and effect and had not been amended as of the date on which the 2012 Selling
KKR Financial Holdings LLC
March 1, 2013
Shareholder Common Shares were issued by the Company, (iii) that the LLC Certificate, the Operating Agreement, the February 2011 Board Resolutions and the February 2013 Compensation Committee Resolutions will be in full force and effect and will not have been amended at any time New Common Shares are issued by the Company, (iv) except to the extent provided in paragraph 1 below, that each of the parties to the documents examined by us has been duly created, organized or formed, as the case may be, and is validly existing in good standing under the laws of the jurisdiction governing its creation, organization or formation, (v) the legal capacity of natural persons who are signatories to the documents examined by us, (vi) that each of the parties to the documents examined by us (other than the Company) has the power and authority to execute and deliver, and to perform its obligations under, such documents, (vii) that each of the parties to the documents examined by us (other than the Company) has duly authorized, executed and delivered such documents, (viii) that any amendment or restatement of any document reviewed by us has been accomplished in accordance with, and was permitted by, the relevant provisions of such document prior to its amendment or restatement from time to time, (ix) that the 2011 Selling Shareholder Common Shares were issued to the Manager in accordance with the 2007 Share Incentive Plan, the Operating Agreement, the 2010 Minutes and the 2011 Award Agreement, (x) that the 2012 Selling Shareholder Common Shares were issued to the Manager in accordance with the 2007 Share Incentive Plan, the Operating Agreement, the 2011 Minutes and the 2012 Award Agreement, (xi) that the Selling Shareholder Common Shares are represented by one or more Certificates in accordance with the Operating Agreement, (xii) that the New Common Shares will be represented by one or more Certificates in accordance with the Operating Agreement, (xiii) that the books and records of the Company will set forth all information required by the Operating Agreement and the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), including all information with respect to each holder of a New Common Share (each a “New Common Share Holder”, and collectively the “New Common Share Holders”) and their contributions or deemed contributions, if any, to the Company, (xiv) the payment by each New Common Share Holder of the full consideration due from it for the New Common Shares acquired by it, (xv) that the New Common Shares are offered, issued and sold in accordance with the February 2013 Compensation Committee Resolutions, the Operating Agreement, the Registration Statement, the Prospectus, the Prospectus Supplement and any supplements or amendments thereto, and (xvi) that upon the issuance of the New Common Shares pursuant to the Operating Agreement, the total number of Common Shares issued or reserved for issuance by the Company will not exceed 500,000,000. We have not participated in the preparation of the Registration Statement, the Prospectus, the Prospectus Supplement, or any supplement or amendment thereto and assume no responsibility for their contents, other than this opinion.
This opinion is limited to the laws of the State of Delaware (excluding the securities, blue sky and tax laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder which are currently in effect.
KKR Financial Holdings LLC
March 1, 2013
Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that:
1. The Company has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Delaware.
2. The Selling Shareholder Common Shares have been validly issued and are fully paid and nonassessable limited liability company interests in the Company. We note, however, that a holder of Selling Shareholder Common Shares may be obligated to repay any funds wrongfully distributed to it by the Company.
3. When issued, delivered and paid for in accordance with the February 2013 Compensation Committee Resolutions and the provisions of the Operating Agreement, the New Common Shares will be validly issued, fully paid and nonassessable limited liability company interests in the Company. We note, however, that a New Common Share Holder may be obligated to repay any funds wrongfully distributed to it by the Company.
We consent to the filing of this opinion with the Commission as an exhibit to the current report on Form 8-K filed by the Company on the date hereof. We also consent to Nicole J. Macarchuk, Esq.’s and Simpson Thacher & Bartlett LLP’s relying as to all matters governed by or arising under the laws of the State of Delaware upon this opinion, as if this opinion was addressed to them, for the purposes of the opinions to be rendered by them in connection with the Prospectus Supplement. In addition, we hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus and the Prospectus Supplement included in the Registration Statement. In giving the foregoing consents, we do not thereby admit that we come within the category of persons or entities whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder. Except as stated above, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other person or entity for any purpose.
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Very truly yours, |
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/s/ Richards, Layton & Finger, P.A. |