As filed with the Securities and Exchange Commission on April 16, 1998
REGISTRATION NO. 333-___________
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)
DELAWARE 11-3191686
(State of Incorporation) (IRS Employer Identification
Number)
37-16 23RD STREET
LONG ISLAND CITY, NY 11101
(Address of Principal Executive Offices)
CONSULTING AGREEMENT WITH ANDREW T. DWYER
AND EMPLOYEE COMPENSATION AGREEMENTS WITH
ROBERT BRUSSEL AND JAMES F. OLIVIERO
(Full Title of the Plans)
JAMES F. OLIVIERO
KSW, INC.
37-16 23RD STREET
LONG ISLAND CITY, NY 11101
TELEPHONE 718-361-6500
FACSIMILE 718-361-5210
(NAME, ADDRESS AND TELEPHONE NUMBER
OF AGENT FOR SERVICE)
-------------------
COPY TO:
JAMES R. TANENBAUM, ESQ.
STROOCK & STROOCK & LAVAN LLP
180 MAIDEN LANE
NEW YORK, NY 10038
TELEPHONE: 212-806-5400
FACSIMILE: 212-806-6006
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Maximum
Securities To Amount to be Offering Price Aggregate Amount of
be Registered Registered (1) Per Share (2) Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares 42,000 2.81 118,020 34.82
($.01 per value)
- ---------------------------------------------------------------------------------------------------------
(1) Shares registered pursuant to this Registration Statement
available for issuance pursuant to the Employee Compensation
Agreement dated March 17, 1998 between KSW, Inc. (the "Company") and
Robert Brussel; Employee Compensation Agreement dated March 17, 1998
between the Company and James F. Oliviero; and Consulting Agreement
dated January 1, 1996 between the Company and Andrew T. Dwyer, as
amended.
(2) Estimated pursuant to Rules 457(c) and 457(h) solely for the purpose of
calculating the amount of the registration fee, based on the average of
the high and low share prices for the Common Stock on the NASDAQ
Electronic Bulletin Board on April 14, 1998, which is within five
business days prior to the date of this Registration Statement.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION
Item 2. REGISTRANT INFORMATION
This Registration Statement covers 42,000 shares of the Registrant's Common
Stock, $.01 par value (plus any additional shares of Common Stock that may be
issued by reason of stock splits, stock dividends or similar transactions),
pursuant to the Employee Compensation Agreement dated March 17, 1998 between the
Company and Robert Brussel, Employee Compensation Agreement dated March 17, 1998
between the Company and James F. Oliviero; and Consulting Agreement dated
January 1, 1996 between the Company and Andrew T. Dwyer, as amended.
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.
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
PART II
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of 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, 1997;
2. The Company's Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1997, and
3. The description of the Registrant's Common Stock, $.01 par
value (the "Shares"), which is in the Registrant's
Registration Statement on Form 10, filed with the Commission
pursunat to Section 12(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of 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.
Any statement contained herein or in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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(6)(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
5.1 Opinion of Stroock & Stroock & Lavan LLP*
23.1 Consent of Stroock & Stroock & Lavan LLP (included within
Exhibit 5.1)
23.2 Consent of Marden, Harrison & Kreuter, P.C.*
24 Power of Attorney (included at page II-4)*
99.1 Employee Compensation Agreement dated March 17, 1998 between
the Company and Robert Brussel*
99.2 Employee Compensation Agreement dated March 17, 1998 between
the Company and James F. Oliviero*
99.3 Consulting Agreement dated January 1, 1996 between the Company
and Andrew T. Dwyer, as amended*
- ------------------
* Filed herewith.
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 of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the Registration statement (or the most
recent post-effective amendment thereof),
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement; 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 this Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at 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.
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 the City of New York, State of New York, on the 16th day of
April, 1998.
KSW, INC.
By: /S/ FLOYD WARKOL
Floyd Warkol
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
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,
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 16th day of April, 1998.
SIGNATURE TITLE
/s/ FLOYD WARKOL Chief Executive Officer, Secretary
- ------------------- Director and Chairman of the Board
Floyd Warkol (Principal Executive Officer)
/s/ ROBERT BRUSSEL Principal Financial Officer and
- -------------------- Accounting Officer and Director
Robert Brussel
/s/ BURTON REYER Director and Chief Operating Officer
- --------------------
Burton Reyer
- --------------------- Director
Armand P. D'Amato
- ---------------------- Director
Daniel Spiegel
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
5.1 Opinion of Stroock & Stroock & Lavan LLP*
23.1 Consent of Stroock & Stroock & Lavan LLP(included within
Exhibit 5.1)
23.2 Consent of Marden, Harrison & Kreuter, P.C.*
24 Power of Attorney (included at page II-4)*
99.1 Employee Compensation Agreement dated March 17, 1998
between the Company and Robert Brussel*
99.2 Employee Compensation Agreement dated March 17, 1998
between the Company and James F. Oliviero*
99.3 Consulting Agreement dated January 1, 1996 between the
Company and Andrew T. Dwyer, as amended*
- ----------------------
* Filed herewith.
EXHIBIT 5.1
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
April 16, 1998
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 42,000 shares of its common stock,
par value $.01 per share (the "Shares"), to be issued pursuant to the Consulting
Agreement dated January 1, 1996 between the Company and Andrew T. Dwyer, as
amended, and Employee Compensation Agreements dated March 17, 1998 between the
Company and each of Robert Brussel and James Oliviero (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 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
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 February
2, 1998, relating to the financial statements of KSW, Inc. as of December 31,
1997 and 1996, and for each of the years ended, appearing in the Annual Report
on Form 10-K of the Company for the year ended December 31, 1997.
/S/ MARDEN, HARRISON & KRETUER
MARDEN, HARRISON & KRETEUR Certified Public Accountants, P.C.
Port Chester, New York
April 15, 1998
EXHIBIT 99.1
EMPLOYEE COMPENSATION
AGREEMENT
This Agreement, dated March 17, 1998, 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
1. As a bonus in recognition of efforts in recovering the Rockland
Psychiatric claim, the undersigned employee shall receive 8,500 shares of KSW,
Inc. stock, registered under the Securities Act of 1933, as amended, under a
Registration Statement on Form S-8.
2. This Agreement shall not be construed as an employment agreement and
shall not affect the terms or conditions of employment of the undersigned
employee.
3. The undersigned agrees that this Agreement shall not be assignable by
him.
4. 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.
5. 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,
Employee
EXHIBIT 99.2
EMPLOYEE COMPENSATION
AGREEMENT
This Agreement, dated March 17, 1998, 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 F. 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
6. As a bonus in recognition of efforts in recovering the Rockland
Psychiatric claim, the undersigned employee shall receive 8,500 shares of KSW,
Inc. stock, registered under the Securities Act of 1933, as amended, under a
Registration Statement on Form S-8.
7. This Agreement shall not be construed as an employment agreement and
shall not affect the terms or conditions of employment of the undersigned
employee.
8. The undersigned agrees that this Agreement shall not be assignable by
him.
9. 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.
10. 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 F. OLIVIERO
James F. Oliviero,
Employee
EXHIBIT 99.3
CONSULTING AGREEMENT
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 sl1all be required to render
independent advisory and consulting services shall be from January 1, 1996
through December 31, l 998 (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 he
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.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officers, and the consultant has singed this Agreement, all
as of the date first above written.
KSW, INC.
By: /S/ FLOYD WARKOL
Name: Floyd Warkol,
Title: Chief Executive Officer
/S/ ANDREW T. DWYER
Andrew T. Dwyer
<PAGE>
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, as 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 din 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 singed this Amendment, all
as of the date first above written.
KSW, INC.
By: /S/ FLOYD WARKOL
Name: Floyd Warkol,
Title: Chief Executive Officer
/S/ ANDREW T. DWYER
Andrew T. Dwyer
