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Item 9A. Controls and Procedures

2023-01-20 compared with 2022-01-21 · 35 added, 45 removed, 234 unchanged (25% of the section changed)

14 unchanged sentences

(b) Report of Independent Registered Public Accounting Firm

To the Stockholders and Board of Directors of KB Home:

To the Stockholders and the Board of Directors of KB Home:

Opinion on Internal Control Over Financial Reporting

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Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We are a public accounting firm registered with the PCAOB and are

required to be independent with respect to the Company in accordance with U.S.

We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S.

federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

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OTHER INFORMATION

On January 19, 2023, our board of directors approved an amendment and restatement of the By-Laws (“Amended and Restated By-Laws”), effective as of such date.

The amendments set forth in the Amended and Restated By - Laws (i) made certain changes and clarifications to the requirements for nominating directors and soliciting proxies, including, without limitation, related to compliance with recently adopted Rule 14a-19 under the Exchange Act, (ii) made certain conforming changes to reflect recent amendments to the Delaware General Corporation Law (“DGCL”) relating to stockholder meeting adjournment procedures and the availability of stockholder lists, and (iii) updated the existing forum selection bylaw to provide that a federal district court of the United States of America shall be the exclusive forum for the resolution of claims under the Securities Act of 1933, as amended, and made applicable conforming changes.

The foregoing summary of the amendments effected by the Amended and Restated By-Laws does not purport to be complete and is qualified in its entirety by reference to the complete text of the Amended and Restated By-Laws, which are filed as Exhibit 3.2 hereto and are incorporated herein by reference.

In addition on January 19, 2023, our board of directors ratified the prior approval of the 2016 amendment to our equity incentive plan and the extensions of our rights agreement in 2018 and 2021.

Following the original approval by our board of directors, the amendment and extensions were submitted to a vote of stockholders at annual meetings for which the record date was set 62 days before the annual meeting, which may not have been fixed in accordance with the DGCL and the Company’s

By-Laws, raising a question about the validity of the votes taken at such meetings.

A copy of the resolutions adopted by our board of directors approving the ratification is set forth in Exhibit 99.1 to this annual report.

Any claim that defective corporate acts or putative stock ratified by the resolutions is void or voidable due to the failure of authorization or that the Delaware Court of Chancery should declare in its discretion that the ratification in accordance with Section 204 of the DGCL not be effective or be effective only on certain conditions must be brought within 120 days from the giving of this notice (which is deemed to be given on the date that this annual report is filed with the SEC).

Also on January 19, 2023, our board of directors approved and confirmed Dr.

Stuart Gabriel’s election and appointment to the board and the audit and compliance committee as of such date, because Dr.

Gabriel first stood for election to our board of directors at the 2016 annual meeting.

Gabriel participates in the same compensation program as our other independent directors.

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

Except as provided below, the information for this item will be provided in the “Ownership of KB Home Securities” section in our 2022 Proxy Statement and is incorporated herein by this reference.

The following table presents information as of November 30, 2021 with respect to shares of our common stock that may be issued under our existing equity compensation plans:

Equity Compensation Plan Information

Plan category Number of

common shares to

be issued upon

outstanding options,

(a) Weighted-average

exercise price of

outstanding options,

warrants and rights

(b) Number of common

shares remaining

available for future

issuance under equity

compensation plans

(excluding common

shares reflected in

Equity compensation plans approved by stockholders 1,674,393 $ 15.56 4,096,427

Equity compensation plans not approved by stockholders — — — (1)

Total 1,674,393 $ 15.56 4,096,427

(1) Represents a prior non-employee directors compensation plan under which our non-employee directors received Director Plan SARs, which were initially granted as cash-settled instruments.

As discussed in Note 19 – Stockholders’ Equity in the Notes to Consolidated Financial Statements in this report, all non-employee directors serving on our board of directors have elected to receive shares of our common stock in settlement of their Director Plan SARs under the terms of the plan.

We consider this non-employee director compensation plan as having no available capacity to issue shares of our common stock.

The information for this item will be provided in the “Ownership of KB Home Securities” and “Approve the Amended and Restated KB Home 2014 Equity Incentive Plan” sections in our 2023 Proxy Statement and is incorporated herein by this reference.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

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001-09195), is incorporated by reference herein.

3.2 Amended and Restated By-Laws of KB Home, as amended , filed as an exhibit to our 2020 Annual Report on Form 10-K (File No.

001-09195), is incorporated by reference herein.

3.2† Amended and Restated By-Laws of KB Home, as amended.

4.1 Indenture relating to our Senior Notes among us, the Guarantors party thereto and Sun Trust Bank, Atlanta, dated January 28, 2004, filed as an exhibit to our Registration Statement No.

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001-09195), is incorporated by reference herein.

4.5 Specimen of 7.50% Senior Notes due 2022, filed as an exhibit to our Current Report on Form 8-K dated July 31, 2012 (File No.

001-09195), is incorporated by reference herein.

4.6 Form of officers’ certificates and guarantors’ certificates establishing the terms of the 7.50% Senior Notes due 2022, filed as an exhibit to our Current Report on Form 8-K dated July 31, 2012 (File No.

001-09195), is incorporated by reference herein.

4.5 Eighth Supplemental Indenture, dated as of March 12, 2013, by and among us, the Guarantors party thereto, the Additional Guarantors named therein and U.S.

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333-176930), is incorporated by reference herein.

4.9 Form of 7.625% Senior Notes due 2023, filed as an exhibit to our Current Report on Form 8-K dated February 17, 2015 (File No.

001-09195), is incorporated by reference herein.

4.10 Form of officers’ certificates and guarantors’ certificates establishing the terms of the 7.625% Senior Notes due 2023, filed as an exhibit to our Current Report on Form 8-K dated February 17, 2015 (File No.

001-09195), is incorporated by reference herein.

4.7 Tenth Supplemental Indenture, dated as of January 22, 2019, by and among us, the Guarantors party thereto, the Additional Guarantors named therein and U.S.

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001-09195), is incorporated by reference herein.

4.14 Form of 7.625% Senior Notes due 2023, filed as an exhibit to our Current Report on Form 8-K dated February 20, 2019 (File No.

001-09195), is incorporated by reference herein.

4.15 Form of officers’ certificates and guarantors’ certificates establishing the form and terms of the 7.625% Senior Notes due 2023, filed as an exhibit to our Current Report on Form 8-K dated February 20, 2019 (File No.

001-09195), is incorporated by reference herein.

4.10 Form of 4.800% Senior Notes due 2029, filed as an exhibit to our Current Report on Form 8-K dated November 4, 2019 (File No.

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001-9195), is incorporated by reference herein.

4.16 Eleventh Supplemental Indenture, dated as of January 20, 2022, by and among us, the Guarantors party thereto, the Additional Guarantors named therein and U.S.

Bank National Association, as Trustee, filed as an exhibit to Post-Effective Amendment No.

1 to the Registration Statement on Form S-3 (Registration Statement No.

333-239778) (File No.

001-09195), dated February 4, 2022, is incorporated by reference herein.

4.17 Form of 7.250% Senior Notes due 2030, filed as an exhibit to our Current Report on Form 8-K dated June 22, 2022 (File No.

001-09195), is incorporated by reference herein.

4.18 Form of officers’ certificate and guarantors’ certificates establishing the form and terms of the 7.250% Senior Notes due 2030, filed as an exhibit to our Current Report on Form 8-K dated June 22, 2022 (File No.

001-09195), is incorporated by reference herein.

4.19† Twelfth Supplemental Indenture, dated as of January 19, 2023, by and among us, the Guarantors party thereto, the Additional Guarantor named therein and Regions Bank, as Trustee.

10.1 KB Home Directors’ Legacy Program, as amended January 1, 1999, filed as an exhibit to our 1998 Annual Report on Form 10-K (File No.

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001-09195), is incorporated by reference herein.

10.28 Third Amended and Restated Revolving Loan Agreement, dated as of October 7, 2019, among us, the banks party thereto, and Citibank, N.A., as Administrative Agent.

10.28 Third Amended and Restated Revolving Loan Agreement, dated as of October 7, 2019, among us, the banks party thereto, and Citibank, N.A., as Administrative Agent, filed as an exhibit to our 2019 Annual Report on Form 10-K (File No.

001-09195), is incorporated by reference herein.

10.29* Form of Performance-Based Restricted Stock Unit Award Agreement under the Amended KB Home 2014 Equity Incentive Plan, filed as an exhibit to our Current Report on Form 8-K dated October 13, 2020 (File No.

4 unchanged sentences

001-09195), is incorporated by reference herein.

10.32† Fourth Amendment to Trust Agreement by and between KB Home and Wells Fargo Bank, N.A., as Trustee, dated January 11, 2022.

10.32 Fourth Amendment to Trust Agreement by and between KB Home and Wells Fargo Bank, N.A., as Trustee, dated January 11, 2022, filed as an exhibit to our 2021 Annual Report on Form 10-K (File No.

001-09195), is incorporated by reference herein .

10.33 Fourth Amended and Restated Revolving Loan Agreement, dated February 18, 2022, among us, the banks party thereto and Citibank N.A., as Administrative Agent, filed as an exhibit to our Quarterly Report on Form 10-Q for the quarter ended February 28, 2022 (File No.

001-09195), is incorporated by reference herein .

10.34 Term Loan Agreement, dated as of August 25, 2022, among us, the banks party thereto, and Wells Fargo Bank, National Association, as Administrative Agent, filed as an exhibit to our Quarterly Report on Form 10-Q for the quarter ended August 31, 2022 (File No.

001-09195), is incorporated by reference herein .

21† Subsidiaries of the Registrant .

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Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

99.1† Board of directors resolutions ratifying the Amended KB Home 2014 Equity Incentive Plan and Amended Rights Agreement.

101.INS XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.

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Director January 20, 2023

/ S / ROBERT L.

Director January 21, 2022

/ S / JODEEN A.

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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures