As Filed with the Securities and Exchange Commission on
February 13, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
KSW, INC.
(Exact Name of Issuer as specified in its charter)
37-16 23RD STREET
LONG ISLAND CITY, NY 11101
(Address of Principal Executive Offices)
DELAWARE 11-3191686
(State of Incorporation) (IRS Employer
Identification #)
CONSULTING OR COMPENSATION AGREEMENTS WITH ROBERT BRUSSEL,
NEVIO DOBRY, ANDREW DWYER, ERNEST GRENDI, JAMES OLIVIERO,
ALFRED SCHROEDER AND VINCENT TERRAFERMA
(Full Title of the Plans)
James F. Oliviero Copy to:
KSW, Inc. James R. Tanenbaum, Esq.
37-16 23rd Street Stroock & Stroock & Lavan, LLP
Long Island City, NY 11101 180 Maiden Lane
Telephone 718-361-6500 Telephone: 212-806-5400
Facsimile 718-361-5210 Facsimile: 212-806-6006
(Name, address and telephone number
of Agent for Service)
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share (1) Price Fee
- ------------------------------------------------------------------------------
Common shares 85,000 $2.25 $191,250 $65.95
($.01 par value)
- -----------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h). The Proposed Maximum Offering Price Per
Share is based on the average of the bid and asked prices for the
common stock of the Registrant as reported on the NASDAQ Electronic
Bulletin Board on February 11, 1997, which is within five business days
prior to the date of this Registration Statement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION Item 2. REGISTRANT INFORMATION
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
Such documents need not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in the Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act. See Rule 428(a)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of KSW, Inc. (the "Company"), previously filed
with the Securities and Exchange Commission, are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
2. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after the
date of this Registration Statement, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to authority conferred by Delaware General Corporation Law
Section 102(b)(7), the Company's Restated Certificate of Incorporation contains
a provision providing that no Director of the Company shall be liable to it or
its stockholders for monetary damages for breach of fiduciary duty as a
Director, except to the extent that such exemption from liability or limitation
thereof is not permitted under the Delaware General Corporation Law as currently
in effect or as the same may be amended. This provision is intended to eliminate
the risk that a Director might incur personal liability to the Company or its
stockholders for breach of the duty of care.
Delaware General Corporation Law Section 145 contains provisions
permitting, and in some situations requiring, Delaware corporations, such as the
Company, to provide indemnification to their officers and Directors for losses
and litigation expenses incurred in connection with their service to the
corporation in those capacities. The Restated Certificate contains provisions
requiring indemnification by the Company of, and advancement of expenses to, its
directors and officer to the fullest extent permitted by law. Among other
things, these provisions provide indemnification for officers and directors
against liabilities for judgments in any settlements of lawsuits and other
proceedings and for the advance and payment of fees and expenses reasonably
incurred by the director officer in defense of any such lawsuit or proceeding.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following documents are being filed herewith or
incorporated by reference
as Exhibits to this Registration Statement:
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of
Incorporation of the Company
3.2 Amended and Restated By-Laws of
the Company
5.1 Opinion of Stroock & Stroock & Lavan LLP
23.1 Consent of Stroock & Stroock & Lavan LLP
(included within Exhibit 5)
23.2 Consent of Corbin & Wertz
23.3 Consent of Marden Harrison & Kreuter
24 Power of Attorney (see Signature Page)
99.1 Consulting Agreement dated as of June 1,
1994 between the Company and Ernest Grendi
99.2 Consulting Agreement dated as of January 1,
1996 between the Company and Andrew T. Dwyer
99.3 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Robert Brussel
99.4 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Nevio Dobry
99.5 Employee Compensation Agreement dated
February 10, 1997 between the Company and
James Oliviero
99.6 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Alfred Schroeder
99.7 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Vincent Terraferma
Item 9. UNDERTAKINGS
(a). The undersigned registrant hereby undertakes:
(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;
(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; and
(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) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act , 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 the 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) The undersigned registrant undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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 Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law and the Certificate
of Incorporation of the Registrant, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act 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 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Long Island City, State of New York, on the 11th day of February,
1997.
KSW, INC.
By: /s/ Floyd Warkol
Floyd Warkol
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned hereby
authorizes Floyd Warkol and Robert Brussel, and each of them, acting together or
alone, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and his name, place and stead, in any and all capacities,
to sign a Registration Statement (the "Registration Statement") on Form S-8
relating to various employee and consultant compensation agreements and any and
all amendments (including post- effective amendments) to the Registration
Statement, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, acting together or alone,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 11th day of February, 1997.
SIGNATURE TITLE
/s/ Floyd Warkol
Floyd Warkol Chief Executive Officer, Secretary
Director and Chairman of the Board
(principal executive officer)
/s/ Robert Brussel
Robert Brussel Principal Financial Officer and
Accounting Officer
/s/ Burton Reyer
Burton Reyer Director and Chief
Operating Officer
/s/ Armand P. D'Amato
Armand P. D'Amato Director
/s/ Daniel Spiegel
Daniel Spiegel Director
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
3.1 Amended and Restated Certificate of
Incorporation of the Company
3.2 Amended and Restated By-Laws of the
Company
5.1 Opinion of Stroock & Stroock & Lavan LLP
23.1 Consent of Stroock & Stroock & Lavan LLP
(included within Exhibit 5)
23.2 Consent of Corbin & Wertz
23.3 Consent of Marden Harrison & Kreuter
24 Power of Attorney (see Signature Page)
99.1 Consulting Agreement dated as of June 1,
1994 between the Company and Ernest Grendi
99.2 Consulting Agreement dated as of January 1,
1996 between the Company and Andrew T. Dwyer
99.3 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Robert Brussel
99.4 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Nevio Dobry
99.5 Employee Compensation Agreement dated
February 10, 1997 between the Company and
James Oliviero
99.6 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Alfred Schroeder
99.7 Employee Compensation Agreement dated
February 10, 1997 between the Company and
Vincent Terraferma
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KSW, INC.
(Under Sections 242 and 245 of the
Delaware General Corporation Law)
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is KSW, INC., which was originally incorporated in the State of
Delaware on December 28, 1993.
2. The Certificate of Incorporation of the Corporation
is hereby amended and restated in its entirety to read as follows:
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KSW, INC
(A Delaware corporation)
FIRST. The name of the corporation is KSW, INC. (the
"Company").
SECOND. The address of the Company's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, County of New Castle, Delaware 19805.
The name of the Company's registered agent at such address is Corporation
Service Company.
THIRD. The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. Section 1. AUTHORIZED CAPITAL STOCK. The Company is authorized
to issue two classes of capital stock, designated Common Stock and Preferred
Stock. The total number of shares of capital stock that the Company is
authorized to issue is 26,000,000 shares, consisting of 25,000,000 shares of
Common Stock, $0.01 par value per share, and 1,000,000 shares of Preferred
Stock, $0.01 par value per share.
Section 2. PREFERRED STOCK. The Preferred Stock may be issued in one or
more series. The Board of Directors of the Company (the "Board") is hereby
authorized to issue the shares of Preferred Stock in such series and to fix from
time to time before issuance the number of shares to be included in any such
series and the designation, relative powers, preferences, and rights and
qualifications, limitations, or restrictions of all shares of such series. The
authority of the Board with respect to each such series will include, without
limiting the generality of the foregoing, the determination of any or all of the
following:
(a) the number of shares of any series and the
designation to distinguish the shares of such series from
the shares of all other series;
(b) the voting powers, if any, and whether such
voting powers are full or limited in such series;
(c) the redemption provisions, if any, applicable to
such series, including the redemption price or prices to
be paid;
(d) whether dividends, if any, will be cumulative or
noncumulative, the dividend rate of such series, and the dates and
preferences of dividends on such series;
(e) the rights of such series upon the voluntary or
involuntary dissolution of, or upon any distribution of
the assets of, the Company;
(f) the provisions, if any, pursuant to which the shares of
such series are convertible into, or exchangeable for, shares of any
other class or classes or of any other series of the same or any other
class or classes of stock, or any other security, of the Company or any
other corporation or other entity, and the price or prices or the rates
of exchange applicable thereto;
(g) the right, if any, to subscribe for or to purchase
any securities of the Company or any other corporation or other
entity;
(h) the provisions, if any, of a sinking fund applicable
to such series; and
(i) any other relative, participating, optional, or
other special powers, preferences, rights, qualifications,
limitations, or restrictions thereof;
all as may be determined from time to time by the Board and stated in the
resolution or resolutions providing for the issuance of such Preferred Stock
(collectively, a "Preferred Stock Designation").
Section 3. COMMON STOCK. Except as may otherwise be provided in a
Preferred Stock Designation, the holders of Common Stock will be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders for each
share of Common Stock held of record by such holder as of the record date for
such meeting.
FIFTH. The Board may make, amend, and repeal the By-Laws of the
Company. Any By-Law made by the Board under the powers conferred hereby may be
amended or repealed by the Board or by the stockholders in the manner provided
in the By-Laws of the Company. Notwithstanding the foregoing and anything
contained in this Amended and Restated Certificate of Incorporation to the
contrary, By-Laws 3, 8, 10, 11, 12, 13, and 39 may not be amended or repealed by
the stockholders, and no provision inconsistent therewith may be adopted by the
stockholders, without the affirmative vote of the holders of at least 80% of the
Voting Stock, voting together as a single class. The Company may in its By-Laws
confer powers upon the Board in addition to the foregoing and in addition to the
powers and authorities expressly conferred upon the Board by applicable law. For
the purposes of this Amended and Restated Certificate of Incorporation, "Voting
Stock" means stock of the Company of any class or series entitled to vote
generally in the election of Directors. Notwithstanding anything contained in
this Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the Voting Stock, voting
together as a single class, is required to amend or repeal, or to adopt any
provisions inconsistent with, this Article Fifth.
SIXTH. Subject to the rights of the holders of any series of
Preferred Stock:
(a) any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called annual or
special meeting of stockholders of the Company and may not be effected
by any consent in writing of such stockholders; and
(b) special meetings of stockholders of the Company may be
called only by (i) the Chairman of the Board (the "Chairman") or (ii)
the Secretary of the Company (the "Secretary") within 10 calendar days
after receipt of the written request of a majority of the total number
of Directors which the Company would have if there were no vacancies
(the "Whole Board").
At any annual meeting or special meeting of stockholders of the Company, only
such business will be conducted or considered as has been brought before such
meeting in the manner provided in the By-Laws of the Company. Notwithstanding
anything contained in this Amended and Restated Certificate of Incorporation to
the contrary, the affirmative vote of at least 80% of the Voting Stock, voting
together as a single class, will be required to amend or repeal, or adopt any
provision inconsistent with, this Article Sixth.
SEVENTH. Section 1. NUMBER, ELECTION, AND TERMS OF DIRECTORS. Subject
to the rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, the number of the Directors of the Company will not be less than
three nor more than 12 and will be fixed from time to time in the manner
described in the By-Laws of the Company. The Directors, other than those who may
be elected by the holders of any series of Preferred Stock, will be classified
with respect to the time for which they severally hold office into three
classes, as nearly equal in number as possible, designated Class I, Class II,
and Class III. The Directors first appointed to Class I will hold office for a
term expiring at the annual meeting of stockholders to be held in 1996; the
Directors first appointed to Class II will hold office for a term expiring at
the annual meeting of stockholders to be held in 1997; and the Directors first
appointed to Class III will hold office for a term expiring at the annual
meeting of stockholders to be held in 1998, with the members of each class to
hold office until their successors are elected and qualified. At each succeeding
annual meeting of the stockholders of the Company, the successors of the class
of Directors whose terms expire at that meeting will be elected by plurality
vote of all votes cast at such meeting to hold office for a term expiring at the
annual meeting of stockholders held in the third year following the year of
their election. Election of Directors of the Company need not be by written
ballot unless requested by the Chairman or by the holders of a majority of the
Voting Stock present in person or represented by proxy at a meeting of the
stockholders at which Directors are to be elected.
Section 2. NOMINATION OF DIRECTOR CANDIDATES. Advance notice
of stockholder nominations for the election of Directors must be given
in the manner provided in the By-Laws of the Company.
Section 3. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Subject to the
rights, if any, of the holders of any series of Preferred Stock to elect
additional Directors under circumstances specified in a Preferred Stock
Designation, newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal, or other cause will be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board, or by a sole remaining Director.
Any Director elected in accordance with the preceding sentence will hold office
for the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Director's
successor has been elected and qualified. No decrease in the number of Directors
constituting the Board may shorten the term of any incumbent Director.
Section 4. REMOVAL. Subject to the rights, if any, of the holders of
any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, any Director may be removed from
office by the stockholders only for cause and only in the manner provided in
this Section 4. At any annual meeting or special meeting of the stockholders,
the notice of which states that the removal of a Director or Directors is among
the purposes of the meeting, the affirmative vote of the holders of at least 80%
of the Voting Stock, voting together as a single class, may remove such Director
or Directors for cause. Except as may be provided by applicable law, cause for
removal will be deemed to exist only if the Director whose removal is proposed
has been adjudged by a court of competent jurisdiction to be liable to the
Company or its stockholders for misconduct as a result of (a) a breach of such
Director's duty of loyalty to the Company, (b) any act or omission by such
Director not in good faith or which involves a knowing violation of law, or (c)
any transaction from which such Director derived an improper personal benefit,
and such adjudication is no longer subject to direct appeal.
Section 5. AMENDMENT, REPEAL, ETC. Notwithstanding anything contained
in this Amended and Restated Certificate of Incorporation to the contrary, the
affirmative vote of at least 80% of the Voting Stock, voting together as a
single class, is required to amend or repeal, or adopt any provision
inconsistent with, this Article Seventh.
EIGHTH. Section 1. Notwithstanding any other provision of this Amended
and Restated Certificate of Incorporation and except as set forth in Section 2
of this Article Eighth, the affirmative vote of at least 80% of the Voting
Stock, voting together as a single class, shall be required:
I. For the adoption of any agreement for the merger or
consolidation of the Company or any Subsidiary (as defined in Section 5
of this Article Eighth) with or into any other person (as defined in
Section 5 of this Article Eighth).
II. To authorize any sale, lease, transfer or exchange of, or
any mortgage or pledge of or the granting of any other security
interest in, or any other disposition of, all or any substantial part
of the assets of the Company or any Subsidiary to or with any other
person (in a single transaction or in a series of related
transactions).
III. To authorize the issuance or transfer by the Company or
any Subsidiary of any securities of the Company or any Subsidiary
(except securities issued pursuant to a stock option, purchase, bonus
or other plan or arrangement, for natural persons who are directors,
employees, consultants and/or agents of the Company or a Subsidiary, or
securities issued upon exercise of any conversion rights, warrants,
options or rights which shall have been outstanding at the time of
adoption of this Article Eighth or which shall have been issued in a
transaction not in contravention of the provisions of this Article
Eighth) to any other person in exchange for cash, securities or other
assets or a combination thereof, if, in the case of any of the
foregoing transactions (as of the date of any action taken by the Board
with respect to any such proposed transaction, or as of the record date
for the determination of stockholders entitled to notice of and to vote
on any such proposed transaction or immediately prior to the
consummation of any such proposed transaction), such other person is,
or at any time within the preceding 12 months has been, the beneficial
owner, directly or indirectly, of 5% or more of the outstanding shares
of Voting Stock of the Company.
Section 2. The provisions of Section 1 of this Article Eighth shall not
apply to (1) any transaction described in such Section 1 if the Board shall by
resolution have approved a memorandum of agreement with such person setting
forth the principal terms of such transaction and such transaction is
substantially consistent therewith, provided that a majority of those directors
voting in favor of such resolution are Continuing Directors (as defined in
Section 5 of this Article Eighth), (2) any transaction described in such Section
1 if the other party to such transaction is a Major Subsidiary (as defined in
Section 5 of this Article Eighth) or (3) any transaction described in such
Section 1 (other than a merger or consolidation to which the Company would be a
party) if the fair value of the securities, assets or other consideration
proposed to be issued or transferred, in any way disposed of, or received, by
the Company or any Subsidiary in connection with any such transaction or any
series of such transactions which are related is less than $2,000,000.
Section 3. Notwithstanding any other provisions of this Amended and
Restated Certificate of Incorporation and except as set forth in Section 4 of
this Article Eighth, the affirmative vote of the holders of at least 80% of the
Voting Stock, voting together as a single class, shall be required:
I. To authorize a liquidation or dissolution of the
Company,
II. To authorize any offer by the Company to
purchase shares of its outstanding Voting Stock (except
pursuant to redemption provisions of any preferred stock
of the Company),
III. To authorize any reclassification of securities
of the Company, any recapitalization or any other
transaction in each case designed to decrease the number
of holders of Voting Stock of the Company,
if (as of the date of any action taken by the Board with respect to any such
proposed transaction, or as of the record date for the determination of
stockholders entitled to notice of and to vote on any such proposed transaction
or immediately prior to the consummation of any such proposed transaction) any
other person is the beneficial owner, directly or indirectly, of 5% or more of
the outstanding shares of Voting Stock of the Company.
Section 4. The provisions of Section 3 of this Article Eighth shall not
apply to any transaction described in such Section 3 if the Board shall by
resolution have approved a memorandum setting forth the principal terms of such
transaction and such transaction is substantially consistent therewith, provided
that a majority of those directors voting in favor of such resolution are
Continuing Directors (as defined in Section 5 of this Article Eighth).
Section 5. For the purpose of this Article Eighth:
I. Any person shall be deemed to be the "beneficial owner" of
any shares of stock of the Company (i) which it owns, directly or
indirectly, whether of record or not, or which it has the right to
acquire pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, or (ii) which are
beneficially owned, directly or indirectly (including shares deemed
owned through application of clause (i) above), by any other person
which is its affiliate or associate (as defined in this Section 5) or
with which it or any of its affiliates or associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of stock of the Company. The outstanding shares of
any class of stock of the Company shall be deemed to include shares
deemed owned, through application of clauses (i) and (ii) above, but
shall not include any other shares which may be issuable pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise.
II. An "affiliate" of a specified person is any person that,
directly or indirectly, controls or is controlled by, or is under
common control with, the person specified. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect
to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of the specified person, whether through the ownership of
voting securities or by contract or otherwise.
III. The term "associates" used to indicate a relationship
with any specified person means (i) any person in which such specified
person has a significant financial interest or as to which such
specified person's relationship is such that such specified person
substantially influences its management and policies or any person
having a significant financial interest in such specified person or
which substantially influences the management and policies of such
specified person, and without limitation to the foregoing, (ii) any
person of which such specified person is an officer, director or
partner or is, directly or indirectly, the beneficial owner of 5% or
more of any class of equity securities, (iii) any trust or other estate
in which such specified person has a substantial beneficial interest or
as to which such person serves as trustee or in a similar fiduciary
capacity, and (iv) any relative or spouse of such specified person, or
any relative of such spouse, who has the same home as such specified
person or who is a director or officer of such specified person or any
corporation which controls or is controlled by such specified person.
IV. A "person" is any individual, corporation or other
entity.
V. The term "securities" shall include, without limitation,
any stocks, bonds, debentures, notes and evidences of indebtedness, and
any warrants, options and other rights to subscribe to or purchase any
of the foregoing.
VI. A "Subsidiary" is any corporation of which at least a
majority of the outstanding shares of equity stock is owned of record
or beneficially by the Company and/or its Subsidiaries. A "Major
Subsidiary" is any corporation of which at least 80% of the outstanding
shares of equity stock is owned of record and beneficially by the
Company and/or its Major Subsidiaries.
VII. The term "Continuing Director" shall mean a person who
was a duly elected and acting director of the Company at the time of
the adoption of this Article Eighth or became a duly elected and acting
director of the Company prior to the time that, for the purposes of
Section 2 or Section 4, as the case may be, of this Article Eighth,
such other person became a beneficial owner, directly or indirectly, of
5% or more of the Voting Stock of the Company, or a person designated
(whether before or after election as a director) to be a Continuing
Director by a majority of the Continuing Directors.
Section 6. A majority of the Continuing Directors shall have the power
and duty to determine for the purposes of this Article Eighth, on the basis of
information known to them, whether a proposed transaction is subject to the
provisions of Section 1 or Section 3 of this Article Eighth, and in particular
and without limitation, whether (1) any person beneficially owns 5% or more of
the outstanding shares of Voting Stock of the Company, (2) any person is an
"affiliate" or "associate" of any other person, (3) any person has an agreement,
arrangement or understanding with any other person, (4) any proposed transaction
involves a substantial part of the assets of the Company or any Subsidiary, (5)
the fair value of securities, assets or other consideration referred to in
Section 2 of this Article Eighth is less than $2,000,000, (6) any series of
transactions are related, and (7) the memorandum referred to in Section 2 or
Section 4 of this Article Eighth is substantially consistent with the
transaction to which it relates. Any such determination shall be conclusive and
binding for all purposes of this Article Eighth.
Section 7. The affirmative vote of stockholders required by this
Article Eighth shall be in lieu of any lesser vote or consent of the holders of
the stock of the Company otherwise required by law or in any agreement to which
the Company is a party, and shall be in addition to any voting requirements
imposed by law or any other provisions of the Amended and Restated Certificate
of Incorporation of the Company, including resolutions providing for the
issuance of a class or series of stock adopted by the Board pursuant to
authority vested in it by the provisions of the Amended and Restated Certificate
of Incorporation, in favor of certain classes of stock.
Section 8. No amendment to this Amended and Restated Certificate of
Incorporation, directly or indirectly by merger, consolidation or otherwise,
shall amend, alter, change or repeal any of the provisions of this Article
Eighth, unless the amendment effecting such amendment, alteration, change or
repeal shall receive the affirmative vote of the holders of at least 80% of the
outstanding shares of stock of the Company entitled to vote in elections of
directors; provided that this Section 8 shall not apply to any such amendment if
such amendment is submitted to the stockholders for adoption with the unanimous
recommendation of the entire Board.
NINTH. To the full extent permitted by the Delaware General Corporation
Law or any other applicable law currently or hereafter in effect, no Director of
the Company will be personally liable to the Company or its stockholders for or
with respect to any acts or omissions in the performance of his or her duties as
a Director of the Company. Any repeal or modification of this Article will not
adversely affect any right or protection of a Director of the Company existing
prior to such repeal or modification.
TENTH. Each person who is or was or had agreed to become a Director or
officer of the Company, and each such person who is or was serving or who had
agreed to serve at the request of the Board or an officer of the Company as an
employee or agent of the Company or as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other entity,
whether for profit or not for profit (including the heirs, executors,
administrators, or estate of such person), will be indemnified by the Company to
the full extent permitted by the Delaware General Corporation Law or any other
applicable law as currently or hereafter in effect. The right of indemnification
provided in this Article (a) will not be exclusive of any other rights to which
any person seeking indemnification may otherwise be entitled, including without
limitation pursuant to any contract approved by a majority of the Whole Board
(whether or not the Directors approving such contract are or are to be parties
to such contract or similar contracts), and (b) will be applicable to matters
otherwise within its scope whether or not such matters arose or arise before or
after the adoption of this Article Tenth. Without limiting the generality or the
effect of the foregoing, the Company may adopt By-Laws, or enter into one or
more agreements with any person, which provide for indemnification greater or
different than that provided in this Article Tenth or the DGCL. Notwithstanding
anything contained in this Amended and Restated Certificate of Incorporation to
the contrary, the amendment or repeal of, or adoption of any provision
inconsistent with, this Article Tenth will require the affirmative vote of the
holders of at least 80% of the Voting Stock, voting together as a single class.
Any amendment or repeal of, or adoption of any provision inconsistent with, this
Article will not adversely affect any right or protection existing hereunder
prior to such amendment, repeal, or adoption.
ELEVENTH: Whenever a compromise or arrangement is proposed between the
Company and its creditors or any class of them and/or between the Company and
its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of the
Company or any creditor or stockholder thereof or on the application of any
receiver or receivers appointed for the Company under the provisions of Section
291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Company under the
provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders, of the Company, as the case may be, to be summoned in such manner
as the said court directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the stockholders or
class of stockholders, of the Company, as the case may be, agree to any
compromise or arrangement and to any reorganization of the Company as a
consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of stockholders, of
the Company, as the case may be, and also on the Company.
3. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Sections 242 and 245 of the General
Corporation Law of the State of Delaware by written consent of the stockholders
in lieu of a meeting of stockholders in accordance with the provisions of
Section 228 of the General Corporation Law of the state of Delaware.
IN WITNESS WHEREOF, said KSW, Inc. has caused this certificate to be
signed by Floyd Warkol, its President and Chief Executive Officer, and attested
by James Oliviero, its Assistant Secretary, this 15th day of December, 1995.
Signed and attested to this 15th day of December, 1995.
KSW, INC.
/S/ FLOYD WARKOL
Name: Floyd Warkol
Title: President and
Chief Executive Officer
Attest:
/S/ JAMES OLIVIERO
Name: James Oliviero
Title: Assistant Secretary
Exhibit 3.2
KSW, INC.
AMENDED AND RESTATED BY-LAWS
(As of December 15, 1995)
KSW, INC.
AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
Page
STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings.................. 1
2. Annual Meeting.............................. 1
3. Special Meetings............................ 1
4. Notice of Meetings.......................... 1
5. Inspectors.................................. 1
6. Quorum...................................... 1
7. Voting...................................... 1
8. Order of Business........................... 2
DIRECTORS
9. Function.................................... 3
10. Number, Election, and Terms................. 3
11. Vacancies and Newly Created Directorships... 3
12. Removal..................................... 3
13. Nominations of Directors; Election.......... 3
14. Resignation................................. 4
15. Regular Meetings............................ 4
16. Special Meetings............................ 4
17. Quorum...................................... 4
18. Participation in Meetings by Telephone
Conference................................ 4
19. Committees.................................. 4
20. Compensation................................ 5
21. Rules....................................... 5
NOTICES
22. Generally................................... 5
23. Waivers..................................... 5
OFFICERS
24. Generally................................... 6
25. Compensation................................ 6
26. Succession.................................. 6
27. Authority and Duties........................ 6
STOCK
28. Certificates................................ 6
29. Classes of Stock............................ 6
30. Transfers................................... 6
31. Lost, Stolen, or Destroyed Certificates..... 7
32. Record Dates................................ 7
iNDEMNIFICATION
33. Damages and Expenses........................ 7
34. Insurance, Contracts, and Funding........... 11
GENERAL
35. Fiscal Year................................. 11
36. Seal........................................ 11
37. Reliance upon Books, Reports, and Records... 11
38. Time Periods................................ 11
39. Amendments.................................. 11
40. Certain Defined Terms....................... 11
1. TIME AND PLACE OF MEETINGS. All meetings of the stockholders for the
election of Directors or for any other purpose will be held at such time and
place, within or without the State of Delaware, as may be designated by the
Board or, in the absence of a designation by the Board, the Chairman, the
President, or the Secretary, and stated in the notice of meeting. The Board may
postpone and reschedule any previously scheduled annual or special meeting of
the stockholders.
2. ANNUAL MEETING. An annual meeting of the stockholders will be held at
such date and time as may be designated from time to time by the Board, at which
meeting the stockholders will elect by a plurality vote the Directors to succeed
those whose terms expire at such meeting and will transact such other business
as may properly be brought before the meeting in accordance with By-Law 8.
3. SPECIAL MEETINGS. Special meetings of the stockholders may be called
only by (a) the Chairman or (b) the Secretary within 10 calendar days after
receipt of the written request of a majority of the Whole Board. Any such
request by a majority of the Whole Board must be sent to the Chairman and the
Secretary and must state the purpose or purposes of the proposed meeting.
Special meetings of holders of the outstanding Preferred Stock, if any, may be
called in the manner and for the purposes provided in the applicable Preferred
Stock Designation. At a special meeting of stockholders, only such business may
be conducted or considered as (i) has been specified in the notice of the
meeting (or any supplement thereto) given by or at the direction of the Chairman
or a majority of the Whole Board or (ii) otherwise is properly brought before
the meeting by the presiding officer of the meeting (as described in By-Law 8)
or by or at the direction of a majority of the Whole Board.
4. NOTICE OF MEETINGS. Written notice of every meeting of the
stockholders, stating the place, date, and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
will be given not less than 10 nor more than 60 calendar days before the date of
the meeting to each stockholder of record entitled to vote at such meeting,
except as otherwise provided herein or by law. When a meeting is adjourned to
another place, date, or time, written notice need not be given of the adjourned
meeting if the place, date, and time thereof are announced at the meeting at
which the adjournment is taken; PROVIDED, HOWEVER, that if the adjournment is
for more than 30 calendar days, or if after the adjournment a new record date is
fixed for the adjourned meeting, written notice of the place, date, and time of
the adjourned meeting must be given in conformity herewith. At any adjourned
meeting, any business may be transacted which properly could have been
transacted at the original meeting.
5. INSPECTORS. The Board may appoint one or more inspectors of election
to act as judges of the voting and to determine those entitled to vote at any
meeting of the stockholders, or any adjournment thereof, in advance of such
meeting. The Board may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the presiding officer of the meeting may
appoint one or more substitute inspectors.
6. QUORUM. Except as otherwise provided by law or in a Preferred Stock
Designation, the holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, will
constitute a quorum at all meetings of the stockholders for the transaction of
business thereat. If, however, such quorum is not present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, will have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum is present or represented.
7. VOTING. Except as otherwise provided by law, by the Certificate of
Incorporation, or in a Preferred Stock Designation, each stockholder will be
entitled at every meeting of the stockholders to one vote for each share of
stock having voting power standing in the name of such stockholder on the books
of the Company on the record date for the meeting and such votes may be cast
either in person or by written proxy. Every proxy must be duly executed and
filed with the Secretary. A stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary. The vote upon any question brought before a
meeting of the stockholders may be by voice vote, unless otherwise required by
the Certificate of Incorporation or these By-Laws or unless the Chairman or the
holders of a majority of the outstanding shares of all classes of stock entitled
to vote thereon present in person or by proxy at such meeting otherwise
determine. Every vote taken by written ballot will be counted by the inspectors
of election. When a quorum is present at any meeting, the affirmative vote of
the holders of a majority of the stock present in person or represented by proxy
at the meeting and entitled to vote on the subject matter and which has actually
been voted will be the act of the stockholders, except in the election of
Directors or as otherwise provided in these By-Laws, the Certificate of
Incorporation, a Preferred Stock Designation, or by law.
8. ORDER OF BUSINESS. (a) The Chairman, or such other officer of the
Company designated by a majority of the Whole Board, will call meetings of the
stockholders to order and will act as presiding officer thereof. Unless
otherwise determined by the Board prior to the meeting, the presiding officer of
the meeting of the stockholders will also determine the order of business and
have the authority in his or her sole discretion to regulate the conduct of any
such meeting, including without limitation by imposing restrictions on the
persons (other than stockholders of the Company or their duly appointed proxies)
who may attend any such stockholders' meeting, by ascertaining whether any
stockholder or his proxy may be excluded from any meeting of the stockholders
based upon any determination by the presiding officer, in his sole discretion,
that any such person has unduly disrupted or is likely to disrupt the
proceedings thereat, and by determining the circumstances in which any person
may make a statement or ask questions at any meeting of the stockholders.
(b) At an annual meeting of the stockholders, only such business will be
conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board, (ii) otherwise properly brought before the meeting by the presiding
officer or by or at the direction of a majority of the Whole Board, or (iii)
otherwise properly requested to be brought before the meeting by a stockholder
of the Company in accordance with paragraph (c) of this By-Law 8.
(c) For business to be properly requested to be brought before an annual
meeting by a stockholder, the stockholder must (i) be a stockholder of the
Company of record at the time of the giving of the notice for such annual
meeting provided for in these By-Laws, (ii) be entitled to vote at such meeting,
and (iii) have given timely notice thereof in writing to the Secretary. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Company not less than 60 calendar days
prior to the annual meeting; PROVIDED, HOWEVER, that in the event public
announcement of the date of the annual meeting is not made at least 75 calendar
days prior to the date of the annual meeting, notice by the stockholder to be
timely must be so received not later than the close of business on the 10th
calendar day following the day on which public announcement is first made of the
date of the annual meeting. A stockholder's notice to the Secretary must set
forth as to each matter the stockholder proposes to bring before the annual
meeting (A) a description in reasonable detail of the business desired to
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address, as they appear on the Company's
books, of the stockholder proposing such business and the beneficial owner, if
any, on whose behalf the proposal is made, (C) the class and number of shares of
the Company that are owned beneficially and of record by the stockholder
proposing such business and by the beneficial owner, if any, on whose behalf the
proposal is made, and (D) any material interest of such stockholder proposing
such business and the beneficial owner, if any, on whose behalf the proposal is
made in such business. Notwithstanding anything in these By-Laws to the
contrary, no business will be conducted at an annual meeting except in
accordance with the procedures set forth in this By-Law 8. The presiding officer
of the annual meeting will, if the facts warrant, determine that business was
not properly brought before the meeting in accordance with the procedures
prescribed in this By-Law 8 and, if he or she should so determine, he or she
will so declare to the meeting and any such business not properly brought before
the meeting will not be transacted. Notwith standing the foregoing provisions of
this By-Law 8, a stockholder must also comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder with respect to the matters set forth in this By-Law 8.
For purposes of this By-Law and By-Law 13, "public announcement" means
disclosure in a press release reported by the Dow Jones News Service, Associated
Press, or comparable national news service or in a document publicly filed by
the Company with the Securities and Exchange Commission pursuant to Sections 13,
14, or 15(d) of the Securities Exchange Act of 1934, as amended. Nothing in this
By-Law 8 will be deemed to affect any rights of stockholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Securities Exchange Act of 1934, as amended.
DIRECTORS
9. FUNCTION. The business and affairs of the Company will
be managed under the direction of its Board.
10. NUMBER, ELECTION, AND TERMS. Subject to the rights, if any, of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, the authorized number of Directors
may be determined from time to time only by a vote of a majority of the Whole
Board or by the affirmative vote of the holders of at least 80% of the Voting
Stock, voting together as a single class, but in no case will the number of
Directors be other than as provided in the Certificate of Incorporation. The
Directors, other than those who may be elected by the holders of any series of
the Preferred Stock, will be classified with respect to the time for which they
severally hold office in accordance with the Certificate of Incorporation.
11. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Subject to the rights, if
any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation, newly
created directorships resulting from any increase in the number of Directors and
any vacancies on the Board resulting from death, resignation, disqualification,
removal, or other cause will be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a
quorum of the Board, or by a sole remaining Director. Any Director elected in
accordance with the preceding sentence will hold office for the remainder of the
full term of the class of Directors in which the new directorship was created or
the vacancy occurred and until such Director's successor is elected and
qualified. No decrease in the number of Directors constituting the Board will
shorten the term of an incumbent Director.
12. REMOVAL. Subject to the rights, if any, of the holders of any series
of Preferred Stock to elect additional Directors under circumstances specified
in a Preferred Stock Designation, any Director may be removed from office by the
stockholders only for cause and only in the manner provided in the Certificate
of Incorporation and, if applicable, any amendment to these By-Laws.
13. NOMINATIONS OF DIRECTORS; ELECTION. (a) Subject to the rights, if
any, of the holders of any series of Preferred Stock to elect additional
Directors under circumstances specified in a Preferred Stock Designation, only
persons who are nominated in accordance with the following procedures will be
eligible for election as Directors of the Company.
(b) Nominations of persons for election as Directors of the Company may
be made at a meeting of stockholders (i) by or at the direction of the Board or
(ii) by any stockholder who is a stockholder of record at the time of giving of
notice provided for in this By-Law 13 who is entitled to vote for the election
of Directors at the meeting and who complies with the procedures set forth in
this By-Law 13. All nominations by stockholders must be made pursuant to timely
notice in proper written form to the Secretary.
(c) To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Company not less than 60
calendar days prior to the meeting; PROVIDED, HOWEVER, that in the event that
public announcement of the date of the meeting is not made at least 75 calendar
days prior to the date of the meeting, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th calendar
day following the day on which public announcement is first made of the date of
the meeting. To be in proper written form, such stockholder's notice must set
forth or include (i) the name and address, as they appear on the Company's
books, of the stockholder giving the notice and of the beneficial owner, if any,
on whose behalf the nomination is made; (ii) a representation that the
stockholder giving the notice is a holder of record of stock of the Company
entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice; (iii) the
class and number of shares of stock of the Company owned beneficially and of
record by the stockholder giving the notice and by the beneficial owner, if any,
on whose behalf the nomination is made; (iv) a description of all arrangements
or understandings between or among any of (A) the stockholder giving the notice,
(B) the beneficial owner on whose behalf the notice is given, (C) each nominee,
and (D) any other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the stockholder giving the
notice; (v) such other information regarding each nominee proposed by the
stockholder giving the notice as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or intended to be nominated, by the
Board; and (vi) the signed consent of each nominee to serve as a director of the
Company if so elected. At the request of the Board, any person nominated by the
Board for election as a Director must furnish to the Secretary that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. The presiding officer of the meeting for election of Directors
will, if the facts warrant, determine that a nomination was not made in
accordance with the procedures prescribed by this By-Law 13, and if he or she
should so determine, he or she will so declare to the meeting and the defective
nomination will be disregarded. Notwithstanding the foregoing provisions of this
By-Law 13, a stockholder must also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this By-Law 13.
14. RESIGNATION. Any Director may resign at any time by
giving written notice of his resignation to the Chairman or the Secretary.
Any resignation will be effective upon actual receipt by any such person or, if
later, as of the date and time specified in such written notice.
15. REGULAR MEETINGS. Regular meetings of the Board may be held
immediately after the annual meeting of the stockholders and at such other time
and place either within or without the State of Delaware as may from time to
time be determined by the Board. Notice of regular meetings of the Board need
not be given.
16. SPECIAL MEETINGS. Special meetings of the Board may be called by the
Chairman or the President on one day's notice to each Director by whom such
notice is not waived, given either personally or by mail, telephone, telegram,
telex, facsimile, or similar medium of communication, and will be called by the
Chairman or the President in like manner and on like notice on the written
request of five or more Directors. Special meetings of the Board may be held at
such time and place either within or without the State of Delaware as is
determined by the Board or specified in the notice of any such meeting.
17. QUORUM. At all meetings of the Board, a majority of the total number
of Directors then in office will constitute a quorum for the transaction of
business. Except for the designation of committees as hereinafter provided and
except for actions required by these By-Laws or the Certificate of Incorporation
to be taken by a majority of the Whole Board, the act of a majority of the
Directors present at any meeting at which there is a quorum will be the act of
the Board. If a quorum is not present at any meeting of the Board, the Directors
present thereat may adjourn the meeting from time to time to another place,
time, or date, without notice other than announcement at the meeting, until a
quorum is present.
18. PARTICIPATION IN MEETINGS BY TELEPHONE CONFERENCE. Members of the
Board or any committee designated by the Board may participate in a meeting of
the Board or any such committee, as the case may be, by means of telephone
conference or similar means by which all persons participating in the meeting
can hear each other, and such participation in a meeting will constitute
presence in person at the meeting.
19. COMMITTEES. (a) The Board, by resolution passed by a majority of the
Whole Board, will designate an executive committee (the "Executive Committee").
The Executive Committee will have and may exercise the powers of the Board,
except the power to declare dividends, to amend these By-Laws, to elect
officers, or to rescind or modify any prior action of the Board and except as
otherwise provided by law.
(b) The Board, by resolution passed by a majority of the Whole Board,
may designate one or more additional committees, each such committee to consist
of one or more Directors and each to have such lawfully delegable powers and
duties as the Board may confer.
(c) The Executive Committee and each other committee of the Board will
serve at the pleasure of the Board or as may be specified in any resolution from
time to time adopted by the Board. The Board may designate one or more Directors
as alternate members of any such committee, who may replace any absent or
disqualified member at any meeting of such committee. In lieu of such action by
the Board, in the absence or disqualification of any member of a committee of
the Board, the members thereof present at any such meeting of such committee and
not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member.
(d) Except as otherwise provided in these By-Laws or by law, any
committee of the Board, to the extent provided in Paragraph (a) of this By-Law
or, if applicable, in the resolution of the Board, will have and may exercise
all the powers and authority of the Board in the direction of the management of
the business and affairs of the Company. Any such committee designated by the
Board will have such name as may be determined from time to time by resolution
adopted by the Board. Unless otherwise prescribed by the Board, a majority of
the members of any committee of the Board will constitute a quorum for the
transaction of business, and the act of a majority of the members present at a
meeting at which there is a quorum will be the act of such committee. Each
committee of the Board may prescribe its own rules for calling and holding
meetings and its method of procedure, subject to any rules prescribed by the
Board, and will keep a written record of all actions taken by it.
20. COMPENSATION. The Board may establish the
compensation for, and reimbursement of the expenses of, Directors for
membership on the Board and on committees of the Board, attendance at meetings
of the Board or committees of the Board, and for other services by Directors to
the Company or any of its majority-owned subsidiaries.
21. RULES. The Board may adopt rules and regulations for the conduct
of their meetings and the management of the affairs of the Company.
NOTICES
22. GENERALLY. Except as otherwise provided by law, these By-Laws, or
the Certificate of Incorporation, whenever by law or under the provisions of the
Certificate of Incorporation or these By-Laws notice is required to be given to
any Director or stockholder, it will not be construed to require personal
notice, but such notice may be given in writing, by mail, addressed to such
Director or stockholder, at the address of such Director or stockholder as it
appears on the records of the Company, with postage thereon prepaid, and such
notice will be deemed to be given at the time when the same is deposited in the
United States mail. Notice to Directors may also be given by telephone,
telegram, telex, facsimile, or similar medium of communication or as otherwise
may be permitted by these By-Laws.
23. WAIVERS. Whenever any notice is required to be given by law or under
the provisions of the Certificate of Incorporation or these By-Laws, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time of the event for which notice is to be given,
will be deemed equivalent to such notice. Attendance of a person at a meeting
will constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
OFFICERS
24. GENERALLY. The officers of the Company will be elected by the Board
and will consist of a Chairman (who, unless the Board specifies otherwise, will
also be the Chief Executive Officer), a President, a Secretary, and a Chief
Financial Officer. The Board of Directors may also choose any or all of the
following: one or more Vice Chairmen, one or more Assistants to the Chairman,
one or more Vice Presidents (who may be given particular designations with
respect to authority, function, or seniority), and such other officers as the
Board may from time to time determine. Notwithstanding the foregoing, by
specific action the Board may authorize the Chairman to appoint any person to
any office other than Chairman, President, Secretary, or Chief Financial
Officer. Any number of offices may be held by the same person. Any of the
offices may be left vacant from time to time as the Board may determine. In the
case of the absence or disability of any officer of the Company or for any other
reason deemed sufficient by a majority of the Board, the Board may delegate the
absent or disabled officer's powers or duties to any other officer or to any
Director.
25. COMPENSATION. The compensation of all officers and
agents of the Company who are also Directors of the Company will be fixed
by the Board or by a committee of the Board. The Board may fix, or delegate the
power to fix, the compensation of other officers and agents of the Company to an
officer of the Company.
26. SUCCESSION. The officers of the Company will hold
office until their successors are elected and qualified. Any officer may be
removed at any time by the affirmative vote of a majority of the Whole Board.
Any vacancy occurring in any office of the Company may be filled by the Board.
27. AUTHORITY AND DUTIES. Each of the officers of the
Company will have such authority and will perform such duties as are
customarily incident to their respective offices or as may be specified from
time to time by the Board.
STOCK
28. CERTIFICATES. Certificates representing shares of stock of the
Company will be in such form as is determined by the Board, subject to
applicable legal requirements. Each such certificate will be numbered and its
issuance recorded in the books of the Company, and such certificate will exhibit
the holder's name and the number of shares and will be signed by, or in the name
of, the Company by the Chairman and the Secretary or an Assistant Secretary, or
the Chief Financial Officer, and will also be signed by, or bear the facsimile
signature of, a duly authorized officer or agent of any properly designated
transfer agent of the Company. Any or all of the signatures and the seal of the
Company, if any, upon such certificates may be facsimiles, engraved, or printed.
Such certificates may be issued and delivered notwithstanding that the person
whose facsimile signature appears thereon may have ceased to be such officer at
the time the certificates are issued and delivered.
29. CLASSES OF STOCK. The designations, preferences, and relative
participating, optional, or other special rights of the various classes of stock
or series thereof, and the qualifications, limitations, or restrictions thereof,
will be set forth in full or summarized on the face or back of the certificates
which the Company issues to represent its stock, or in lieu thereof, such
certificates will set forth the office of the Company from which the holders of
certificates may obtain a copy of such information.
30. TRANSFERS. Upon surrender to the Company or the transfer agent of
the Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, it will be the
duty of the Company to issue, or to cause its transfer agent to issue, a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books.
31. LOST, STOLEN, OR DESTROYED CERTIFICATES. The Secretary may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact, satisfactory
to the Secretary, by the person claiming the certificate of stock to be lost,
stolen, or destroyed. As a condition precedent to the issuance of a new
certificate or certificates, the Secretary may require the owners of such lost,
stolen, or destroyed certificate or certificates to give the Company a bond in
such sum and with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the Company with respect
to the certificate alleged to have been lost, stolen, or destroyed or the
issuance of the new certificate.
32. RECORD DATES. (a) In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board may fix a record date, which will not be more
than 60 nor less than 10 calendar days before the date of such meeting. If no
record date is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders will be at the
close of business on the calendar day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the calendar day
next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of the
stockholders will apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
(b) In order that the Company may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion, or exchange of stock, or for the purpose of any other lawful action,
the Board may fix a record date, which record date will not be more than 60
calendar days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose will be at the close of
business on the calendar day on which the Board adopts the resolution relating
thereto.
(c) The Company will be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes, and will
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Company has notice
thereof, except as expressly provided by applicable law.
INDEMNIFICATION
33. DAMAGES AND EXPENSES. (a) Without limiting the generality or effect
of Article Ninth of the Certificate of Incorporation, the Company will to the
fullest extent permitted by applicable law as then in effect indemnify any
person (an "Indemnitee") who is or was involved in any manner (including without
limitation as a party or a witness) or is threatened to be made so involved in
any threatened, pending, or completed investigation, claim, action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (including
without limitation any action, suit, or proceeding by or in the right of the
Company to procure a judgment in its favor) (a "Proceeding") by reason of the
fact that such person is or was or had agreed to become a Director, officer,
employee, or agent of the Company, or is or was serving at the request of the
Board or an officer of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other entity, whether
for profit or not for profit (including the heirs, executors, administrators, or
estate of such person), or anything done or not by such person in any such
capacity, against all expenses (including attorneys' fees), judgments, fines,
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such Proceeding. Such indemnification will be a contract
right and will include the right to receive payment in advance of any expenses
incurred by an Indemnitee in connection with such Proceeding, consistent with
the provisions of applicable law as then in effect.
(b) The right of indemnification provided in this By-Law 33 will not be
exclusive of any other rights to which any person seeking indemnification may
otherwise be entitled, and will be applicable to Proceedings commenced or
continuing after the adoption of this By-Law 33, whether arising from acts or
omissions occurring before or after such adoption.
(c) In furtherance, but not in limitation of the foregoing provisions,
the following procedures, presumptions, and remedies will apply with respect to
advancement of expenses and the right to indemnification under this By-Law 33:
(i) All reasonable expenses incurred by or on behalf of an
Indemnitee in connection with any Proceeding will be advanced to the
Indemnitee by the Company within 30 calendar days after the receipt by
the Company of a statement or statements from the Indemnitee requesting
such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements will
reasonably evidence the expenses incurred by the Indemnitee and, if and
to the extent required by law at the time of such advance, will include
or be accompanied by an undertaking by or on behalf of the Indemnitee to
repay such amounts advanced as to which it may ultimately be determined
that the Indemnitee is not entitled. If such an undertaking is required
by law at the time of an advance, no security will be required for such
undertaking and such undertaking will be accepted without reference to
the recipient's financial ability to make repayment.
(ii) To obtain indemnification under this By-Law 33, the
Indemnitee will submit to the Secretary a written request, including
such documentation supporting the claim as is reasonably available to
the Indemnitee and is reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to indemnification (the
"Supporting Documentation"). The determination of the Indemnitee's
entitlement to indemnification will be made not less than 60 calendar
days after receipt by the Company of the written request for
indemnification together with the Supporting Documentation. The
Secretary will promptly upon receipt of such a request for
indemnification advise the Board in writing that the Indemnitee has
requested indemnification. The Indemnitee's entitlement to
indemnification under this By-Law 33 will be determined in one of the
following ways: (A) by a majority vote of the Disinterested Directors
(as hereinafter defined), if they constitute a quorum of the Board, or,
in the case of an Indemnitee that is not a present or former officer of
the Company, by any committee of the Board or committee of officers or
agents of the Company designated for such purpose by a majority of the
Whole Board; (B) by a written opinion of Independent Counsel if (1) a
Change of Control has occurred and the Indemnitee so requests or (2) in
the case of an Indemnitee that is a present or former officer of the
Company, a quorum of the Board consisting of Disinterested Directors is
not obtainable or, even if obtainable, a majority of such Disinterested
Directors so directs; (C) by the stockholders (but only if a majority of
the Disinterested Directors, if they constitute a quorum of the Board,
presents the issue of entitlement to indemnification to the stockholders
for their determination); or (D) as provided in subparagraph (iii)
below. In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to clause (B) above, a
majority of the Disinterested Directors will select the Independent
Counsel, but only an Independent Counsel to which the Indemnitee does
not reasonably object; PROVIDED, HOWEVER, that if a Change of Control
has occurred, the Indemnitee will select such Independent Counsel, but
only an Independent Counsel to which the Board does not reasonably
object.
(iii) Except as otherwise expressly provided in this By-Law 33,
the Indemnitee will be presumed to be entitled to indemnification under
this By-Law 33 upon submission of a request for indemnification together
with the Supporting Documentation in accordance with subparagraph (c)
(ii) above, and thereafter the Company will have the burden of proof to
overcome that presumption in reaching a contrary determination. In any
event, if the person or persons empowered under subparagraph (c) (ii) to
determine entitlement to indemnification has not been appointed or has
not made a determination within 60 calendar days after receipt by the
Company of the request therefor together with the Supporting
Documentation, the Indemnitee will be deemed to be entitled to
indemnification and the Indemnitee will be entitled to such
indemnification unless (A) the Indemnitee misrepresented or failed to
disclose a material fact in making the request for indemnification or in
the Supporting Documentation or (B) such indemnification is prohibited
by law. The termination of any Proceeding described in paragraph (a) of
this By-Law 33, or of any claim, issue, or matter therein, by judgment,
order, settlement, or conviction, or upon a plea of NOLO CONTENDERE or
its equivalent, will not, of itself, adversely affect the right of the
Indemnitee to indemnification or create a presumption that the
Indemnitee did not act in good faith and in a manner which the
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal Proceeding,
that the Indemnitee had reasonable cause to believe that his conduct was
unlawful.
(iv) (A) In the event that a determination is made pursuant to
subparagraph (c) (ii) that the Indemnitee is not entitled to
indemnification under this By-Law 33, (1) the Indemnitee will be
entitled to seek an adjudication of his or her entitlement to such
indemnification either, at the Indemnitee's sole option, in (x) an
appropriate court of the State of Delaware or any other court of
competent jurisdiction or (y) an arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration
Association; (2) any such judicial proceeding or arbitration will be DE
NOVO and the Indemnitee will not be prejudiced by reason of such adverse
determination; and (3) in any such judicial proceeding or arbitration
the Company will have the burden of proving that the Indemnitee is not
entitled to indemnification under this By-Law 33.
(B) If a determination is made or deemed to have been made, pursuant to
subparagraph (c)(ii) or (iii) of this By-Law 33 that the Indemnitee is entitled
to indemnification, the Company will be obligated to pay the amounts
constituting such indemnification within five business days after such
determination has been made or deemed to have been made and will be conclusively
bound by such determination unless (1) the Indemnitee misrepresented or failed
to disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (2) such indemnification is prohibited by law. In
the event that advancement of expenses is not timely made pursuant to
subparagraph (c)(i) of this By-Law 33 or payment of indemnification is not made
within five business days after a determination of entitlement to
indemnification has been made or deemed to have been made pursuant to
subparagraph (c)(ii) or (iii) of this By-Law 33, the Indemnitee will be entitled
to seek judicial enforcement of the Company's obligation to pay to the
Indemnitee such advancement of expenses or indemnification. Notwithstanding the
foregoing, the Company may bring an action, in an appropriate court in the State
of Delaware or any other court of competent jurisdiction, contesting the right
of the Indemnitee to receive indemnification hereunder due to the occurrence of
any event described in subclause (1) or (2) of this clause (B) (a "Disqualifying
Event"); PROVIDED, HOWEVER, that in any such action the Company will have the
burden of proving the occurrence of such Disqualifying Event.
(C) The Company will be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to the provisions of this
subparagraph (c)(iv) that the procedures and presumptions of this By-Law 33 are
not valid, binding, and enforceable and will stipulate in any such court or
before any such arbitrator that the Company is bound by all the provisions of
this By-Law 33.
(D) In the event that the Indemnitee, pursuant to the provisions of this
subparagraph (c)(iv), seeks a judicial adjudication of, or an award in
arbitration to enforce, his rights under, or to recover damages for breach of,
this By-Law 33, the Indemnitee will be entitled to recover from the Company, and
will be indemnified by the Company against, any expenses actually and reasonably
incurred by the Indemnitee if the Indemnitee prevails in such judicial
adjudication or arbitration. If it is determined in such judicial adjudication
or arbitration that the Indemnitee is entitled to receive part but not all of
the indemnification or advancement of expenses sought, the expenses incurred by
the Indemnitee in connection with such judicial adjudication or arbitration will
be prorated accordingly.
(d) For purposes of this paragraph (c):
(A) "Change in Control" means the occurrence of any of the following
events:
(1) The Company is merged, consolidated, or reorganized into or
with another corporation or other legal entity, and as a result of such
merger, consolidation, or reorganization less than a majority of the
combined voting power of the then outstanding securities of such
corporation or entity immediately after such transaction are held in the
aggregate by the holders of the Voting Stock immediately prior to such
transaction;
(2) The Company sells or otherwise transfers all or
substantially all of its assets to another corporation or other legal
entity and, as a result of such sale or transfer, less than a majority
of the combined voting power of the then-outstanding securities of such
other corporation or entity immediately after such sale or transfer is
held in the aggregate by the holders of Voting Stock immediately prior
to such sale or transfer;
(3) There is a report filed on Schedule 13D or Schedule 14D-1
(or any successor schedule, form, or report or item therein), each as
promulgated pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any person (as the term "person"
is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has
become the beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of securities representing 30% or more of the combined
voting power of the Voting Stock;
(4) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act
disclosing in response to Form 8-K or Schedule 14A (or any successor
schedule, form, or report or item therein) that a change in control of
the Company has occurred or will occur in the future pursuant to any
then-existing contract or transaction; or
(5) If, during any period of two consecutive years, individuals
who at the beginning of any such period constitute the Directors cease
for any reason to constitute at least a majority thereof; PROVIDED,
HOWEVER, that for purposes of this clause (5) each Director who is first
elected, or first nominated for election by the Company's stockholders,
by a vote of at least two-thirds of the Directors (or a committee of the
Board) then still in office who were Directors at the beginning of any
such period will be deemed to have been a Director at the beginning of
such period.
Notwithstanding the foregoing provisions of clauses (3) or (4) of this
paragraph (c)(v)(A), unless otherwise determined in a specific case by majority
vote of the Board, a "Change in Control" will not be deemed to have occurred for
purposes of such clauses (3) or (4) solely because (x) the Company, (y) an
entity in which the Company, directly or indirectly, beneficially owns 50% or
more of the voting securities (a "Subsidiary"), or (z) any employee stock
ownership plan or any other employee benefit plan of the Company or any
Subsidiary either files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K, or
Schedule 14A (or any successor schedule, form, or report or item therein) under
the Exchange Act disclosing beneficial ownership by it of shares of Voting
Stock, whether in excess of 30% or otherwise, or because the Company reports
that a change in control of the Company has occurred or will occur in the future
by reason of such beneficial ownership.
(B) "Disinterested Director" means a Director of the a Company who is
not or was not a party to the Proceeding in respect of which indemnification is
sought by the Indemnitee.
(C) "Independent Counsel" means a law firm or a member of a law firm
that neither presently is, nor in the past five years has been, retained to
represent (1) the Company or the Indemnitee in any matter material to either
such party or (2) any other party to the Proceeding giving rise to a claim for
indemnification under this By-Law 33. Notwithstanding the foregoing, the term
"Independent Counsel" will not include any person who, under the applicable
standards of professional conduct then prevailing under the law of the State of
Delaware, would be precluded from representing either the Company or the
Indemnitee in an action to determine the Indemnitee's rights under this By-Law
33.
(d) If any provision or provisions of this By-Law 33 are held to be
invalid, illegal, or unenforceable for any reason whatsoever: (i) the validity,
legality, and enforceability of the remaining provisions of this By-Law 33
(including without limitation all portions of any paragraph of this By-Law 33
containing any such provision held to be invalid, illegal, or unenforceable,
that are not themselves invalid, illegal, or unenforceable) will not in any way
be affected or impaired thereby and (ii) to the fullest extent possible, the
provisions of this By-Law 33 (including without limitation all portions of any
paragraph of this By-Law 33 containing any such provision held to be invalid,
illegal, or unenforceable, that are not themselves invalid, illegal, or
unenforceable) will be construed so as to give effect to the intent manifested
by the provision held invalid, illegal, or unenforceable.
34. INSURANCE, CONTRACTS, AND FUNDING. The Company may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines, and amounts paid in settlement or incurred by any Indemnitee
in connection with any Proceeding referred to in By-Law 33 or otherwise, to the
fullest extent permitted by applicable law as then in effect. The Company may
enter into contracts with any person entitled to indemnification under By-Law 33
or otherwise, and may create a trust fund, grant a security interest, or use
other means (including without limitation a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in By-Law 33.
GENERAL
35. FISCAL YEAR. The fiscal year of the Company will end
on December 31 or such date as may be fixed from time to time by the Board.
36. SEAL. The Board may adopt a corporate seal and use
the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
37. RELIANCE UPON BOOKS, REPORTS, AND RECORDS. Each Director, each
member of a committee designated by the Board, and each officer of the Company
will, in the performance of his or her duties, be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports, or statements presented to the Company by any of the Company's officers
or employees, or committees of the Board, or by any other person or entity as to
matters the Director, committee member, or officer believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company.
38. TIME PERIODS. In applying any provision of these By-Laws that
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days will be used unless otherwise specified, the
day of the doing of the act will be excluded and the day of the event will be
included.
39. AMENDMENTS. Except as otherwise provided by law or by the
Certificate of Incorporation, these By-Laws or any of them may be amended in any
respect or repealed at any time, either (i) at any meeting of stockholders,
provided that any amendment or supplement proposed to be acted upon at any such
meeting has been described or referred to in the notice of such meeting, or (ii)
at any meeting of the Board, provided that no amendment adopted by the Board may
vary or conflict with any amendment adopted by the stockholders.
40. CERTAIN DEFINED TERMS. Terms used herein with initial
capital letters that are defined in the Certificate of Incorporation are
used herein as so defined.
Exhibit 5.1
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
February 13, 1997
KSW, Inc.
37-26 23rd Street
Long Island City, NY 11101
Re: KSW, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for KSW, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing of a registration
statement of the Company on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, covering 85,000 shares of its common stock,
par value $.01 per share (the "Shares"), to be issued pursuant to the Consulting
Agreement dated June 1, 1994 between the Company and Ernest Grendi, as amended,
and the Consulting Agreement dated January 1, 1996 between the Company and
Andrew T. Dwyer, as amended, and Employee Compensation Agreements dated February
10, 1997 between the Company and each of Robert Brussel, Nevio Dobry, James
Oliviero, Al Schroeder and Vincent Terraferma (collectively, the "Plans").
We have examined copies of the Certificate of Incorporation and
By-Laws of the Company, each as amended to date, and the minutes of various
meetings of the Board of Directors of the Company. We have examined the
Registration Statement, the Plans and the original or reproduced or certified
copies of such records of the Company, certificates of public officials,
certificates of officers and representatives of the Company, and such other
documents, papers, statutes and authorities as we have deemed necessary to form
the basis of the opinion hereinafter expressed. In such examinations, we have
assumed the genuineness of signatures and the conformity to original documents
of the documents supplied to us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares, when
duly issued pursuant to the terms of the Plans, will be validly issued, fully
paid and nonassessable.
We hereby consent to be named in the Registration Statement as the
attorneys who have passed upon the legality of the securities being offered
thereby, and to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ STROOCK & STROOCK & LAVAN LLP
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
KSW Inc
We hereby consent to the incorporatin by reference in the Registration Statement
on Form S-8 of our report dated February 19, 1996, accept as to Note 12, which
is as of March 12, 1996 appearing in the Annual Report on Form 10K of KSW, Inc
for the year ended December 31, 1995.
/s/ Corbin & Wertz
CORBIN & WERTZ
Irvine, California
February 11, 1997
Exhibit 23.3
KSW, Inc.
We hereby consent to the incorporation by reference in this Registration
statement of KSW, Inc. (the "Company") on Form S-8 of our report dated June 7,
1994, relating to the financial statements of Kerby Saunders-Warkol, Inc. and
Affiliates as of October 31, 1993, appearing in the Annual Report on Form 10-K
of the Company for the year ended December 31, 1995.
MARDEN, HARRISON & KRETUER Certified Public Accountants, P.C.
/s/ Marden, Harrison & Kreuter
Port Chester, New York
February 10, 1997
Consulting Agreement, dated as of June 1, 1994 (this "Agreement"), by
and among AIM TECHNOLOGY, INC., a Delaware corporation whose address is 1117
Route 31, South Lebanon, New Jersey 08833 (the "Company"), KSW, Inc., a Delaware
corporation whose address is 37-16 23rd Street, Long Island City, New York 11101
("KSW"), and ERNEST W. GRENDI (the "Consultant"), whose address is 57 Harbor
Hill Drive, Lloyd Harbor, New York 11743.
1. CONSULTATION SERVICES
The Company hereby engages the Consultant and the Consultant hereby
agrees to make himself available during the Consulting Period (as hereinafter
defined) to render, at the request of the Company, to the Company and its
present subsidiaries, including KSW, nonexclusive independent advisory and
consulting services to the best of his ability, and subject to the terms and
conditions set forth herein.
2. TERM OF AGREEMENT
The period during which the Consultant shall be required to render
independent advisory and consulting services shall be from September 1, 1994
through August 31, 1997 (the "Consulting Period").
Notwithstanding the length of the Consulting Period, the consulting
arrangement provided for by this Agreement may be terminated for "Good Cause."
"Good Cause" shall mean and be limited to the following events: (1) the
Consultant's conviction in a court of law of any crime involving money or other
property of the Company and which constitutes a felony in the jurisdiction
involved; or (ii) a determination by a physician licensed in New York State that
the Consultant is a chronic alcoholic; or (iii) a determination by a physician
licensed in New York State that the Consultant is dependent upon controlled
substances, as that term is defined in the Mental Hygiene Law of the State of
New York, as amended, or any successor statute; or (iv) continuing, repeated,
willful failure or refusal by the Consultant to substantially perform his duties
in accordance with this Agreement (other than any such failure or refusal
resulting from the Consultant's incapacity due to physical or mental illness);
provided, however, that such failure or refusal shall not be deemed to
constitute Good Cause under this subdivision (iv) unless the Consultant shall
have first received written notice by certified mail or personal delivery from
Floyd Warkol or Burton Reyer advising the Consultant of the specific acts or
omissions alleged to constitute a failure or refusal substantially to perform
his duties, and such failure or refusal continues after the Consultant shall
have had a reasonable opportunity to correct the acts or omissions so complained
of. Such termination may be affected by either AIM as set forth above or the
Consultant for any reason on fifteen (15) days prior notice to the other party,
in writing, by certified mail or personal delivery to the address set forth in
the preamble of this Agreement effective on the last day of any quarterly
period, commencing with the quarter ending November 30, 1994. Upon the
effectiveness of such termination the Company shall not be obligated to make any
further payments to the Consultant pursuant to Section 4 hereof and the
Consultant shall not be obligated to furnish any of the services to be provided
by the Consultant pursuant to this Agreement. The Company's right to terminate
the consulting arrangement provided for by this Agreement may only be exercised
by Mr. Floyd Warkol, the President and Chief Executive Officer of KSW
("Warkol"). Should Warkol no longer be employed with KSW, the Company, or any
affiliate or subsidiary thereof, or successor thereto, during the Consulting
Period for any reason whatsoever, the responsibilities of Warkol shall be
assumed by Mr. Burton Reyer who is hereby irrevocably appointed by the parties
as the designee of Warkol for purposes hereof. Additionally, the Company or any
of its subsidiaries agrees not to instruct either Warkol or Reyer to terminate
the consulting arrangement or this Agreement, but may advise them of the
specific conduct and/or acts of the Consultant.
3. DUTIES
If requested by the Company, the Consultant will consult with Warkol
(who may be directed by the Company's Chairman) concerning matters of the
Company relating to the acquisitions, consolidations of operations and strategic
planning for the Company or any of its present subsidiaries.
The consultant agrees to render such services conscientiously and to
devote his reasonable efforts and abilities to such services. Additionally, the
Consultant's services shall be on a non-exclusive basis. The Consultant shall
not be required to render services in excess of five (5) working days in any
month. In addition to making himself available for five (5) working days, the
Consultant shall be available by telephone to render services hereunder for such
periods of time as may be mutually acceptable to the Consultant and the Company.
4. PAYMENT TO CONSULTANT
(a) During the Consulting Period, the Company will pay the Consultant a
quarterly consulting fee of $20,000 per quarter in United States currency,
payable quarterly in advance on the 1st day of each quarter, commencing
September 1, 1994. The Consultant will also be paid for reasonable out-of-pocket
expenses as provided in Section 7.
(b) The Company shall also pay the Consultant during the Consulting
Period, in United States currency, the sum of $3,750 in lieu of medical
coverage, on a quarterly basis, payable quarterly in advance on the first day of
each quarter, commencing September 1994.
(c) The consultant acknowledges receipt of the sum of $23,750
representing payments due under 4(a) and 4(b) for the quarter commencing
September 1, 1994. KSW shall pay $50,000 in cash for prior services upon signing
this Agreement.
5. GUARANTY, ETC.
KSW hereby unconditionally guarantees the payment to the consultant by
the Company of its obligations under Section 4 and 6 of this Consulting
Agreement. Such guaranty shall be a guaranty of payment and not of collection.
Should the Consultant not be paid any amounts owing to him hereunder, as when
such payments would be due and payable hereunder, immediately after written
demand therefore, KSW shall make such payments to the Consultant regardless of
any defenses that the Company may have to the making of such payments and
without requiring the Consultant to pursue any remedies against the Company.
Upon the making of any such payment, KSW shall be subrogated to the rights of
the Consultant against the Company.
6. EXPENSES
The Consultant shall be reimbursed for all reasonable and necessary
business out-of-pocket expenses incurred by the Consultant during the term of
the Agreement on behalf of the Company in the performance of services hereunder,
including, but not limited to, ordinary living expenses if travel is requested
by the Company.
7. INDEPENDENT CONTRACTOR
It is agreed that the Consultant will act as an independent contractor
in the performance of his duties under this Agreement. Accordingly, the
Consultant shall be responsible for payment of all taxes including federal,
state and local taxes arising out of the Consultant's activities in accordance
with this Agreement, including, but not limited to, federal and state income
tax, social security tax, unemployment insurance tax, and any other taxes or
required business license fees, as required.
8. CONFIDENTIAL INFORMATION
The Consultant agrees that any information received by the Consultant
during the furtherance of the Consultant's obligations under this Agreement,
which concerns the personal, financial or other affairs of the Company and its
present subsidiaries, will be treated by the Consultant in full confidence and
will not be revealed to any other persons, firms or organizations except: (a)
pursuant to subpoena or other legal proceeding, or (b) if such information is
generally available to the public.
9. SUCCESSORS AND ASSIGNS; BINDING AGREEMENT
This Agreement shall be binding and shall inure to the benefit of the
parties hereto and the heirs, personal representatives and estate of the
Consultant, and the successors and permitted assigns of the parties; PROVIDED
HOWEVER, that the duties of the Consultant hereunder are personal to the
Consultant and may not be delegated or assigned by him; AND PROVIDED FURTHER
that the Company may assign its rights and obligations hereunder to any entity
which agrees to comply with the provisions hereof, which is the assignee or
successor by merger, stock sale or asset sale to the business of the Company not
withstanding anything herein contained to the contrary. Such assignment by the
Company shall not relieve it from its obligations, representations and
responsibilities under this Agreement nor release KSW under Section 5.
10. FURTHER ASSURANCES
The parties hereto agree to perform any further acts and to execute and
deliver any documents which may be necessary or appropriate to carry out the
purposes of this Agreement.
11. SEVERABILITY
If any provision of this Agreement is held to be unenforceable, invalid
or illegal by any court of competent jurisdicition, such unenforceable, invalid
or illegal provisions shall not offset the remainder of this Agreement.
12. ATTORNEY'S FEES
If any legal action or any arbitration or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach
or default in connection with any of the provisions of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and disbursements incured in this action or proceeding in
addition to any other relief to which it may be entitled.
13. LAWS
The validity of this Agreement and the interpretation of all of its
terms shall be governed by the laws of the State of New York without regard to
its principles of conflicts of laws.
14. WAIVER
The failure of either party hereto to insist upon strict compliance of
any of the terms, covenants and conditions hereof, shall not be deemed a waiver
or relinquishment of any similar right or power hereunder at any subsequent time
or any other provision hereof.
15. CONSENT TO JURISDICTION
The parties hereto irrevocably and unconditionally consent to the
exclusive jurisdiction of the Courts of the State of New York or the United
States of America sitting in New York County and the State of New York over any
suit, action or proceeding arising out of or relating to this agreement or any
agreement executed in connection herewith. Each of the parties agree that the
prevailing party of any such action, suit, or proceeding shall be indemnified
for such party's legal costs and expenses incurred in connection therewith. Each
of the parties hereto irrevocably waives the right to a trial by jury in any
such action, suit or proceeding. Each such party hereby irrevocably waives any
objection, including, without limitation, any objection to the laying of venue
or based upon the grounds of FORUM NON CONVENIENS which such party may now or
hereafter have to the bringing of any such action, suit or proceeding in any
such court and irrevocably agrees that process in any such action, suit or
proceeding may be served upon that party personally or by certified or
registered mail; return receipt requested.
16. ENTIRE AGREEMENT, ETC.
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings (whether written or oral) with respect to such
subject matter. This Agreement may not be amended, modified, changed, waived or
altered, except by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, the Company, and KSW have caused this Agreement to
be signed by their duly authorized officers, and the Consultant has signed this
Agreement, all as of the date first above written.
KSW, Inc.
By: /S/ FLOYD WARKOL
FLOYD WARKOL
By:/S/ ERNEST W. GRENDI
ERNEST W. GRENDI
AIM Technology, Inc.
By:/S/ MAX MALONE
MAX MALONE
<PAGE>
ASSIGNMENT AND ASSUMPTION
HELIONETICS, INC., a California corporation having an office at 6849
Hayvenhurst Avenue, Van Nuys, California 91406 ("Helionetics" or the
"Assignor"), for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, does hereby assign and transfer to KSW, INC., a
Delaware corporation, its successors and assigns ("KSWI" or the
"Assignee") all of its right, title, interest and obligation arising out of and
pursuant to that certain Consulting Agreement (the "Consulting Agreement"),
dated as of June 1, 1994, by and among Helionetics, KSWI and Ernest Grendi (the
"Consultant").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, KSW, INC. hereby assumes all
right, title, interest and obligation of Helionetics arising out of and pursuant
to the Consulting Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption as of the 7th day of December, 1995.
HELIONETICS, INC.
By: /S/ BERNARD B. KATZ
Bernard B. Katz
Chairman of the Board of
Directors
KSW, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
President
AMENDMENT TO CONSULTING AGREEMENT
This Amendment (the "Amendment"), dated February 13, 1997, is by and
between KSW, Inc. ("the Company"), with offices at 37-16 23rd Street, Long
Island City, New York 11101, and Ernest Grendi, a consultant to the Company (the
"Consultant").
WHEREAS, the Company and Consultant are parties to a Consulting
Agreement dated as of June 1, 1994 (the "Consulting Agreement");
WHEREAS, the Consulting Agreement provides that the Consultant shall be
compensated for his services to the Company by payment in United States
currency;
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for the Consultant to
hold an equity position in the Company.
NOW, THEREFORE, it is agreed that Article 4 of the Consulting Agreement
is hereby amended by the addition of a new paragraph (d), as
follows:
(d) The Company, with the consent of the Consultant,
may make payment to the Consultant under Section 4(a) of this
Agreement in shares of Common Stock of the Company (the
"Shares"), valued at the fair market value thereof as reasonably
determined by the Company; provided, however, that such Shares
shall not be issued to the Consultant until the services with
respect to which such Shares are to be issued have been performed
by the Consultant. The Company shall exercise its best efforts to
cause the offering of such shares to be registered under the
Securities Act of 1933, as amended, under a Registration
Statement on Form S-8 or on such other form as shall be
appropriate.
IN WITNESS WHEREOF, the Company has caused this Amendment to be signed
by its duly authorized officer, and the Consultant has signed this Amendment,
all as of the date first above written.
KSW, INC.
By:/s/Floyd Warkol
Floyd Warkol
Chief Executive Officer
/s/ Ernest Grendi
Ernest Grendi
Consulting Agreement, dated as of January 1, 1996 (this "Agreement"),
by and among KSW, Inc., a Delaware corporation whose address is 37-16 23rd
Street, Long Island City, New York 11101 (the "Company") and Andrew T. Dwyer
(the "Consultant"), whose address is 115 East Putnam Avenue, Greenwich,
Connecticut 06803.
1. CONSULTATION SERVICES
The Company hereby engages the Consultant and the Consultant hereby
agrees to make himself available during the Consulting Period (as hereinafter
defined) to render, at the request of the Company, to the Company and its
subsidiaries, nonexclusive independent advisory and consulting services to the
best of his ability to compliance with all applicable laws, and subject to the
terms and conditions set forth herein.
2. TERM OF AGREEMENT
The period during which the Consultant shall be required to render
independent advisory and consulting services shall be from January 1, 1996
through December 31, 1998 (the "Consulting Period").
Notwithstanding the length of the Consulting Period, the consulting
arrangement provided for by this Agreement may be terminated for "Good Cause."
"Good Cause" shall mean and be limited to the following events: (1) the
Consultant's conviction in a court of law of any crime involving money or other
property of the Company and which constitutes a felony in the jurisdiction
involved; or (ii) a determination by a physician licensed in New York State that
the Consultant is a chronic alcoholic; or (iii) a determination by a physician
licensed in New York State that the Consultant is dependent upon controlled
substances, as that term is defined in the Mental Hygiene Law of the State of
New York, as amended, or any successor statute; or (iv) continuing, repeated
willful failure or refusal by the Consultant to substantially perform his duties
in accordance with this Agreement (other than any such failure or refusal
resulting from the Consultant's incapacity due to physical or mental illness);
provided, however, that such failure or refusal shall not be deemed to
constitute Good Cause under this subdivision (iv) unless the Consultant shall
have first received notice from the Company advising the Consultant of the
specific acts or omissions alleged to constitute a failure or refusal
substantially to perform his duties, and such failure or refusal continues after
the Consultant shall have had a reasonable opportunity to correct the acts or
omissions so complained of. Upon the effectiveness of such termination, the
Company shall not be obligated to make any further payments to the Consultant
pursuant to Section 4 hereof and the Consultant shall not be obligated to
furnish any of the services to be provided by the Consultant pursuant to this
Agreement. The Company's right to terminate the consulting arrangement provided
for by this Agreement may only be exercised by Mr. Floyd Warkol, the Chief
Executive Officer of KSWI ("Warkol"). Should Warkol no longer be employed with
the Company, or any affiliate or subsidiary thereof, or successor thereto,
during the Consulting Period for any reason whatsoever, the responsibilities of
Warkol shall be assumed by Mr. Burton Reyer who is hereby irrevocably appointed
by the parties as the designee of Warkol for purposes hereof.
3. DUTIES
If requested by the Company, the Consultant will consult with Warkol or
his designee concerning matters of the Company relating to acquisitions,
consolidations of operations and strategic planning for the Company or any of
its present subsidiaries.
The Consultant agrees to render such services conscientiously and to
devote his reasonable efforts and abilities to such services. Additionally, the
Consultant's services shall be on a non-exclusive basis. The Consultant shall
not be required to render services in excess of thirty (30) working hours in any
month. In addition to making himself available for thirty (30) working hours,
the Consultant shall be available by telephone to render services hereunder for
such periods of time as may be mutually acceptable to the Consultant and the
Company.
4. PAYMENT TO CONSULTANT
During the Consulting Period of the Company will pay the Consultant a
monthly consulting fee of $6,250.00 per month in United States currency, payable
monthly in advance on the 1st day of each month, commencing January 1, 1996. The
Consultant will also be paid for reasonable out-of-pocket expenses as provided
in Section 6.
5. OPTIONS FOR COMMON STOCK
(a) In consideration of the Consultant entering into this Agreement,
the Company shall issue to the Consultant 15,000 options to purchase shares of
the Company's common stock at $1.50 per share, upon the same terms and
conditions as options are granted to the Company's Executive Officers. The
options shall be exercisable as follows: one third on 12/15/96, one third on
12/15/97 and one third on 12/15/98. The Consultant will forfeit the options to
the Company for no consideration in the event the Consulting arrangement
provided for by this Agreement is terminated by either the Consultant or the
Company pursuant to Section 2 prior to December 31, 1998. Notwithstanding the
foregoing, should the consulting arrangement hereunder be terminated as a result
of the Consultant's death or disability, the options shall not be forfeited to
the Company, and in the case of the Consultant's death, the options shall be the
property of the Consultant's estate, so long as they are exercised within six
months after the Consultant's death.
6. EXPENSES
The Consultant shall be reimbursed for all reasonable and necessary
business out-of-pocket expenses incurred by the Consultant during the term of
the Agreement on behalf of the Company in the performance of services hereunder,
including, but not limited to, ordinary living expenses if travel is requested
by the Company.
7. INDEPENDENT CONTRACTOR
It is agreed that the Consultant will act as an independent contractor
in the performance of his duties under this Agreement. Accordingly, the
Consultant shall be responsible for payment of all taxes including federal,
state and local taxes arising out of the Consultant's activities in accordance
with this Agreement, including, but not limited to, federal and state income
tax, social security tax, unemployment insurance tax, and any other taxes or
required business license fees, as required.
8. CONFIDENTIAL INFORMATION
The Consultant agrees that any information received by the Consultant
during the furtherance of the Consultant's obligations under this Agreement,
which concerns the personal, financial or other affairs of the Company and its
present subsidiaries, will be treated by the Consultant in full confidence and
will not be revealed to any other persons, firms or organizations.
9. SUCCESSORS AND ASSIGNS: BINDING AGREEMENT
This Agreement shall be binding and shall insure to the benefit of the
parties hereto and the heirs, personal representatives and estate of the
Consultant, and the successors and permitted assigns of the parties; PROVIDED
HOWEVER, that the duties of the Consultant hereunder are personal to the
Consultant and may not be delegated or assigned by him; AND PROVIDED FURTHER
that the Company may assign its rights and obligations hereunder to any entity
which agrees to comply with the provisions hereof, which is the assignee or
successor by merger, stock sale or asset sale to the business of the Company.
10. FURTHER ASSURANCES
The parties hereto agree to perform any further acts and to execute and
deliver any documents which may be necessary or appropriate to carry out the
purposes of this Agreement.
11. SEVERABILITY
If any provision of this Agreement is held to be unenforceable, invalid
or illegal by any court or competent jurisdiction, such unenforceable, invalid
or illegal provisions shall not effect the remainder of this Agreement.
12. ATTORNEY'S FEES
If any legal action or any arbitration or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach
or default in connection with any of the provisions of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys' fees incurred in this action or proceeding in addition to any other
relief to which it may be entitled.
13. LAWS
The Validity of this Agreement and the interpretation of all of its
terms shall be governed by the laws of the State of New York without regards to
its principles of conflicts of laws.
14. WAIVER
The failure of either party hereto to insist upon strict compliance of
any of the terms, covenants and conditions hereof, shall not be deemed a waiver
or relinquishment of any similar right or power hereunder at any subsequent time
or of any other provision hereof.
15. CONSENT TO JURISDICTION
Each of the parties hereto irrevocably waives the right to a trial by
jury in any such action, suit or proceeding. Each such party hereby irrevocably
waives any objection, including, without limitation, any objection to the laying
of venue or based upon the grounds of FORUM NON CONVENIENS which such party may
now or hereafter have to the bringing of any such action, suit or proceeding in
any such court and irrevocably agrees that process in any such action, suit or
proceeding may be served upon that party personally or by certified or
registered mail, return receipt requested. The parties hereby irrevocably and
unconditionally consent to the exclusive jurisdiction of the Courts of the State
of New York or the United States of America sitting in the State of New York
over any suit, action or proceeding arising out of or relating to this agreement
or any agreement executed in connection herewith. Each of the parties agree that
the prevailing party of any such action, suit, or proceeding shall be
indemnified for such party's legal costs and expenses incurred in connection
therewith.
16. ENTIRE AGREEMENT, ETC.
This Agreement contains the entire agreement and understanding between
the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings (whether written or oral) with respect to such
subject matter. This Agreement may not be amended, modified, changed, waived or
altered, except by an instrument in writing signed by the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officers, and the Consultant has signed this Agreement,
all as of the date first above written.
KSW, INC.
By:/S/ FLOYD WARKOL
/S/ ANDREW DWYER
Andrew T. Dwyer
AMENDMENT TO CONSULTING AGREEMENT
This Amendment (the "Amendment"), dated February 13, 1997, is by and
between KSW, Inc. ("the Company"), with offices at 37-16 23rd Street, Long
Island City, New York 11101, and Andrew T. Dwyer, a consultant to the Company
(the "Consultant").
WHEREAS, the Company and Consultant are parties to a Consulting
Agreement dated as of June 1, 1994 (the "Consulting Agreement");
WHEREAS, the Consulting Agreement provides that the Consultant shall be
compensated for his services to the Company by payment in United States
currency;
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for the Consultant to
hold an equity position in the Company.
NOW, THEREFORE, it is agreed that Article 4 of the Consulting Agreement
hereby is amended in its entirety as follows:
(a) During the Consulting Period, the
Company will pay to the Consultant a monthly
consulting fee of $6,250.00 per month in United
States currency, payable monthly in advance on the 1st day of
each month, commencing January 1, 1996. The Consultant will also
be paid for reasonable out-of-pocket expenses as provided in
Section 6.
(b) The Company, with the consent of the Consultant,
may make payment to the Consultant under Section 4(a) of this
Agreement in shares of Common Stock of the Company (the
"Shares"), valued at the fair market value thereof as reasonably
determined by the Company; provided, however, that such Shares
shall not be issued to the Consultant until the services with
respect to which such Shares are to be issued have been performed
by the Consultant. The Company shall exercise its best efforts to
cause the offering of such shares to be registered under the
Securities Act of 1933, as amended, under a Registration
Statement on Form S-8 or on such other form as shall be
appropriate.
IN WITNESS WHEREOF, the Company has caused this Amendment to be signed
by its duly authorized officer, and the Consultant has signed this Amendment,
all as of the date first above written.
KSW, INC.
By:/s/ Floyd Warkol
Floyd Warkol
Chief Executive Officer
/s/ Andrew T. Dwyer
Andrew T. Dwyer
Exhibit 99.3
This Agreement, dated February 10, 1997, is by and among KSW, Inc.,
("the Company") its subsidiary KSW Mechanical Services, Inc. ("Services"), both
Delaware corporations with offices at 37-16 23rd Street, Long Island City, New
York 11101, and Robert Brussel, an executive/employee of Services.
WHEREAS, it is usual and customary for Services to reward the prior
year's efforts of its managerial employees during the first quarter of the
succeeding year at which time the year end results have been finally determined;
and
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for Services' executive
employees to hold an equity position in the Company; it is agreed that
As a portion of his bonus for 1996, the undersigned employee shall receive
10,000 shares of KSW, Inc. stock, registered under the Securities Act of 1933,
as amended, under a Registration Statement on Form S-8.
This Agreement shall not be construed as an employment agreement and shall
not affect the terms or conditions of employment of the undersigned employee.
The undersigned agrees that this Agreement shall not be assignable by him.
The foregoing is the entire agreement among the parties with respect to the
subject hereof and may not be amended, supplemented, canceled or discharged
except by written instrument executed by the parties hereto.
This Agreement is to be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflicts
of law.
IN WITNESS WHEREOF, the Company and Services have caused this Agreement
to be signed by their duly authorized officers, and the Employee has signed this
Agreement, all as of the date first above written.
KSW, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
KSW MECHANICAL SERVICES, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
/S/ ROBERT BRUSSEL
Robert Brussel
Exhibit 99.4
This Agreement, dated February 10, 1997, is by and among KSW, Inc.,
("the Company") its subsidiary KSW Mechanical Services, Inc. ("Services"), both
Delaware corporations with offices at 37-16 23rd Street, Long Island City, New
York 11101, and Nevio Dobry, an executive/employee of Services.
WHEREAS, it is usual and customary for Services to reward the prior
year's efforts of its managerial employees during the first quarter of the
succeeding year at which time the year end results have been finally determined;
and
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for Services' executive
employees to hold an equity position in the Company; it is agreed that
As a portion of his bonus for 1996, the undersigned employee shall receive
10,000 shares of KSW, Inc. stock, registered under the Securities Act of 1933,
as amended, under a Registration Statement on Form S-8.
This Agreement shall not be construed as an employment agreement and shall
not affect the terms or conditions of employment of the undersigned employee.
The undersigned agrees that this Agreement shall not be assignable by him.
The foregoing is the entire agreement among the parties with respect to the
subject hereof and may not be amended, supplemented, canceled or discharged
except by written instrument executed by the parties hereto.
This Agreement is to be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflicts
of law.
IN WITNESS WHEREOF, the Company and Services have caused this Agreement
to be signed by their duly authorized officers, and the Employee has signed this
Agreement, all as of the date first above written.
KSW, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
KSW MECHANICAL SERVICES, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
/S/ NEVIO DOBRY
Nevio Dobry
Exhibit 99.5
This Agreement, dated February 10, 1997, is by and among KSW, Inc.,
("the Company") its subsidiary KSW Mechanical Services, Inc. ("Services"), both
Delaware corporations with offices at 37-16 23rd Street, Long Island City, New
York 11101, and James Oliviero, an executive/employee of Services.
WHEREAS, it is usual and customary for Services to reward the prior
year's efforts of its managerial employees during the first quarter of the
succeeding year at which time the year end results have been finally determined;
and
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for Services' executive
employees to hold an equity position in the Company; it is agreed that
As a portion of his bonus for 1996, the undersigned employee shall receive
10,000 shares of KSW, Inc. stock, registered under the Securities Act of 1933,
as amended, under a Registration Statement on Form S-8.
This Agreement shall not be construed as an employment agreement and shall
not affect the terms or conditions of employment of the undersigned employee.
The undersigned agrees that this Agreement shall not be assignable by him.
The foregoing is the entire agreement among the parties with respect to the
subject hereof and may not be amended, supplemented, canceled or discharged
except by written instrument executed by the parties hereto.
This Agreement is to be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflicts
of law.
IN WITNESS WHEREOF, the Company and Services have caused this Agreement
to be signed by their duly authorized officers, and the Employee has signed this
Agreement, all as of the date first above written.
KSW, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
KSW MECHANICAL SERVICES, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
/S/ JAMES OLIVIERO
James Oliviero
Exhibit 99.6
This Agreement, dated February 10, 1997, is by and among KSW, Inc.,
("the Company") its subsidiary KSW Mechanical Services, Inc. ("Services"), both
Delaware corporations with offices at 37-16 23rd Street, Long Island City, New
York 11101, and Alfred Schroeder, an executive/employee of Services.
WHEREAS, it is usual and customary for Services to reward the prior
year's efforts of its managerial employees during the first quarter of the
succeeding year at which time the year end results have been finally determined;
and
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for Services' executive
employees to hold an equity position in the Company; it is agreed that
As a portion of his bonus for 1996, the undersigned employee shall receive
10,000 shares of KSW, Inc. stock, registered under the Securities Act of 1933,
as amended, under a Registration Statement on Form S-8.
This Agreement shall not be construed as an employment agreement and shall
not affect the terms or conditions of employment of the undersigned employee.
The undersigned agrees that this Agreement shall not be assignable by him.
The foregoing is the entire agreement among the parties with respect to the
subject hereof and may not be amended, supplemented, canceled or discharged
except by written instrument executed by the parties hereto.
This Agreement is to be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflicts
of law.
IN WITNESS WHEREOF, the Company and Services have caused this Agreement
to be signed by their duly authorized officers, and the Employee has signed this
Agreement, all as of the date first above written.
KSW, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
KSW MECHANICAL SERVICES, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
/S/ ALFRED SCHROEDER
Alfred Schroeder
Exhibit 99.7
This Agreement, dated February 10, 1997, is by and among KSW, Inc., ("the
Company") its subsidiary KSW Mechanical Services, Inc. ("Services"), both
Delaware corporations with offices at 37-16 23rd Street, Long Island City, New
York 11101, and Vincent Terraferma, an executive/employee of Services.
WHEREAS, it is usual and customary for Services to reward the prior
year's efforts of its managerial employees during the first quarter of the
succeeding year at which time the year end results have been finally determined;
and
WHEREAS, the Company believes it is beneficial to conserve
capital in order to sustain growth; and
WHEREAS, the Company believes it is beneficial for Services' executive
employees to hold an equity position in the Company; it is agreed that
As a portion of his bonus for 1996, the undersigned employee shall receive
10,000 shares of KSW, Inc. stock, registered under the Securities Act of 1933,
as amended, under a Registration Statement on Form S-8.
This Agreement shall not be construed as an employment agreement and shall
not affect the terms or conditions of employment of the undersigned employee.
The undersigned agrees that this Agreement shall not be assignable by him.
The foregoing is the entire agreement among the parties with respect to the
subject hereof and may not be amended, supplemented, canceled or discharged
except by written instrument executed by the parties hereto.
This Agreement is to be governed by and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflicts
of law.
IN WITNESS WHEREOF, the Company and Services have caused this Agreement
to be signed by their duly authorized officers, and the Employee has signed this
Agreement, all as of the date first above written.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
KSW MECHANICAL SERVICES, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
/S/ VINCENT TERRAFERMA
Vincent Terraferma
