As filed with the Securities and Exchange Commission on July 2, 2018.

Registration Statement No. 333-223202

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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POST-EFFECTIVE

AMENDMENT NO. 1

TO

FORM S-8

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

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KKR & CO. INC.

(Exact name of Registrant as specified in its charter)

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9 West 57th Street, Suite 4200

New York, NY 10019

Telephone: (212) 750-8300

(Address, including zip code, and telephone number, including area code, of principal executive offices)

 

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Amended and Restated KKR & Co. Inc. 2010 Equity Incentive Plan

(Full Title of the Plan)

 

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David J. Sorkin, Esq.

General Counsel

KKR & Co. Inc.

9 West 57th Street, Suite 4200

New York, NY 10019

Telephone: (212) 750-8300

(Name and address, including zip code, and telephone number, including area code, of agent for service)

With a Copy to:

 

Joseph H. Kaufman, Esq.

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Telephone: (212) 455-2000

 

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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

 

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EXPLANATORY NOTE

 

This Post-Effective Amendment No. 1 (this “Amendment”) to Registration Statement No. 333-223202 (the “Registration Statement”) does not reflect any increase in the number of shares issuable pursuant to the Amended and Restated KKR & Co. Inc. 2010 Equity Incentive Plan (the “Amended Equity Plan”). This Amendment is being filed pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the “Securities Act”), by KKR & Co. Inc., a Delaware corporation (“KKR Co.”), as the successor registrant to KKR & Co. L.P., a Delaware limited partnership (“KKR LP”).  Effective at 12:01 a.m. (Eastern Time) on July 1, 2018, KKR LP converted from a Delaware limited partnership to a Delaware corporation (the “Conversion”). KKR Co. expressly adopts the Registration Statement, as modified by this Amendment, as its own registration statement for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

For the purposes of this Amendment and the Registration Statement, (i) as of any time prior to the Conversion, references to “KKR,” “we,” “us,” “our” and similar terms mean KKR LP and its consolidated subsidiaries and, as of any time after the Conversion, KKR Co. and its consolidated subsidiaries, (ii) as of any time prior to the Conversion, references to “KKR & Co. L.P.” and/or “our partnership” mean KKR LP and its consolidated subsidiaries and, as of any time after the Conversion, if the context requires, references to “KKR & Co. L.P.” and/or “our partnership” are deleted and replaced with “KKR & Co. Inc.” or “our company,” as applicable, which means KKR Co. and its consolidated subsidiaries, (iii) as of any time prior to the Conversion, references to “our Managing Partner” mean KKR Management LLC, which acted as the general partner of KKR LP, and, as of any time after the Conversion, if the context requires, references to “our Managing Partner” are deleted and replaced with “the Class B Stockholder” which means the holder of Class B common stock, par value $0.01 per share, of KKR Co., (iv) as of any time prior to the Conversion, references to “unitholders” mean the holders of any limited partnership interest in KKR LP, whether common or preferred, and, as of any time after the Conversion, if the context requires, references to “unitholders” are deleted and replaced with “stockholders” which means the holders of Class A common stock, par value $0.01 per share, of KKR Co. and (v) as of any time prior to the Conversion, references to “common units” mean the common units of KKR LP and, as of any time after the Conversion, if the context requires, references to “common units” are deleted and replaced with “common stock” which means Class A common stock, par value $0.01 per share, of KKR Co.

 

The prospectus contained in the Registration Statement incorporates by reference all documents filed by KKR LP under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial filing of the Registration Statement and will incorporate by reference all documents filed by KKR Co. under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act following the date of this Amendment. The prospectus contained in the Registration Statement, as well as all documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act before the effective time of the Conversion and incorporated by reference in the Registration Statement, will not reflect the change in our name, type of legal entity or capital stock, among other things.  With respect to such information, or any other information contained or incorporated by reference in the Registration Statement that is modified by information subsequently incorporated by reference in the Registration Statement, the statement or information previously contained or incorporated in the Registration Statement shall also be deemed modified or superseded in the same manner.

 

In connection with the Conversion, KKR Co. has amended and restated the KKR & Co. L.P. 2010 Equity Incentive Plan by adopting the Amended Equity Plan. The Amended Equity Plan is filed as an exhibit to this Amendment and is hereby incorporated by reference into this Amendment.

 

The rights of holders of KKR Co.’s Class A common stock are now governed by its Delaware certificate of incorporation, its Delaware bylaws and the Delaware General Corporation Law, each of which is described in Amendment No. 1 to KKR’s Registration Statement on Form 8-A.

 

The Registration Statement shall remain unchanged in all other respects. Accordingly, this Amendment consists only of this explanatory note and revised versions of the following parts of the Form S-8: Part I, Part II, the signatures, the exhibit index and the exhibits filed in connection with this Amendment.

 

PART I.

 

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

 

The information specified in Items 1 and 2 of Part I of the Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act. The documents containing the information specified in Part I will be delivered to the participants in the Amended Equity Plan covered by this Registration Statement, as is defined by this Amendment, as required by Rule 428(b)(1).

 

PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.

INCORPORATION OF DOCUMENTS BY REFERENCE.

 

The following documents filed with the Commission by KKR pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement:

 

(a)

the Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed on February 23, 2018;

 

(b)

the Quarterly Report on Form 10-Q for the quarter ended March 31, 2018, filed on May 8, 2018;

 

(c)

the Current Reports on Form 8-K, filed on March 2, 2018 (excluding Items 7.01 and 99.01, which have been furnished and not filed), March 23, 2018, June 29, 2018 and July 2, 2018 (two reports); and

 

(d)

the description of the Class A common stock, par value $0.01 per share, of KKR Co. in Amendment No. 1 to Form 8-A, filed on July 2, 2018.

 

All documents that KKR subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Amendment and prior to the filing of a post-effective amendment to the Registration Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents (other than information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless expressly stated otherwise therein).

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Amendment to the extent that a statement contained herein or in any other subsequently filed document that is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

ITEM 5.

INTERESTS OF NAMED EXPERTS AND COUNSEL.

 

The validity of the Class A common stock will be passed upon for us by Simpson Thacher & Bartlett LLP, New York, New York. Certain partners of Simpson Thacher & Bartlett LLP, members of their families and related persons have an interest representing less than 1% of the capital commitments of investment funds managed by an affiliate of KKR.

 

ITEM 6.

INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

The Registrant is incorporated under the laws of Delaware.

 

Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which such person is made a party by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (other than an action by or in the right of the corporation—a “derivative action”), if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s bylaws, disinterested director vote, stockholder vote, agreement or otherwise.

 

Under the Registrant’s certificate of incorporation, in most circumstances the Registrant will indemnify the following persons, to the fullest extent permitted by law, from and against all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts: (a) KKR Management LLC (“KML”) and any successor or permitted assign that owns the Class B common stock of the Registrant at the applicable time (the “Class B Stockholder”); (b) KML in its capacity as the former general partner of KKR & Co. L.P. (the “Former Managing Partner”); (c) any person who is or was an affiliate of the Class B Stockholder or the Former Managing Partner; (d) any person who is or was a member, partner, Tax Matters Partner (as defined in the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and in effect prior to 2018), Partnership Representative (as defined in the Code), officer, director, employee, agent, fiduciary or trustee of the Registrant or its subsidiaries, any KKR Group Partnership (as defined in the Registrant’s certificate of incorporation), the Class B Stockholder or any Former Managing Partner or any affiliate of the Registrant or its subsidiaries, the Class B Stockholder or the Former Managing Partner; (e) any person who is or was serving at the request of the Registrant or any Former Managing Partner or any affiliate of the Registrant or any Former Managing Partner as an officer, director, employee, member, partner, Tax Matters Partner, Partnership Representative, agent, fiduciary or trustee of another person (provided that a person shall not be an indemnitee by reason of providing, on a fee-for-services basis or similar arms-length compensatory basis, agency, advisory, consulting, trustee, fiduciary or custodial services); or (f) any person designated by the Registrant as an indemnitee. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following:

 

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any breach of the director’s duty of loyalty to the corporation or its stockholders;

 

·

any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law;

 

·

unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and

 

·

any transaction from which the director derived an improper personal benefit.

 

The Registrant has agreed to provide this indemnification unless there has been a final and non-appealable judgment by a court of competent jurisdiction determining that these persons acted in bad faith or engaged in fraud or willful misconduct. The Registrant has also agreed to provide this indemnification for criminal proceedings. Any indemnification under these provisions will only be out of the Registrant’s assets. Unless it otherwise agrees, the Class B Stockholder will not be liable for, or have any obligation to contribute or loan any monies or property to the Registrant to enable the Registrant to effectuate, indemnification. The indemnification of the persons described above shall be secondary to any indemnification such person is entitled from another person or the relevant KKR fund to the extent applicable. The Registrant may purchase insurance against liabilities asserted against and expenses incurred by persons in connection with its activities, regardless of whether the Registrant would have the power to indemnify the person against liabilities under the Registrant’s certificate of incorporation.

 

In addition, the Registrant has entered into indemnification agreements with KML and each of the Registrant’s directors. A description of the Registrant’s indemnification agreements is set forth in the section entitled “Part II. Item 5. Other Information—Reorganization and Amendments to Material Agreements” in KKR & Co. L.P.’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2018 and the section entitled “Certain Relationships and Related Party Transactions, and Director Independence—Indemnification of Directors, Officers and Others” in KKR & Co. L.P.’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, each of which is incorporated herein by reference, which disclose that the Registrant will generally indemnify KML and the Registrant’s directors, to the fullest extent permitted by law, against all losses, claims, damages or similar events. The Registrant has agreed to provide this indemnification unless there has been a final and non-appealable judgment by a court of competent jurisdiction determining that these persons acted in bad faith or engaged in fraud or willful misconduct.

 

The Registrant currently maintains liability insurance for its directors and officers. Such insurance would be available to the Registrant’s directors and officers in accordance with its terms.

 

ITEM 7.

EXEMPTION FROM REGISTRATION CLAIMS.

 

Not applicable.

 

ITEM 8.

EXHIBITS.

 

See Exhibit Index.

 

ITEM 9.

UNDERTAKINGS.

 

The undersigned registrant hereby undertakes:

 

(a)

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i)

To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii)

To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

(iii)

To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.

 

(2)

That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)

To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b)

That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

Exhibit Index

 

 

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*	Previously filed.

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York, on July 2, 2018.

 

 

Pursuant to the requirements of the Securities Act of 1933 this Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated below.

 

 

 

II-7

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