UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF
1934
Date of report (Date of earliest event reported)
October 11, 2012
KSW, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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0-27290
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11-3191686
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(Commission
File Number)
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(IRS Employer
Identification No.)
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37-16 23rd Street
Long Island City, New York
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11101
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(Address of Principal Executive Offices)
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(Zip Code)
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(718) 361-6500
(Registrants Telephone Number, Including Area Code)
Not
Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (
see
General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Introduction
As previously disclosed on September 10, 2012, KSW, Inc., a Delaware corporation (the Company), entered into an Agreement and Plan of Merger (the Merger Agreement) with Kool
Acquisition LLC, a Delaware limited liability company (Parent), Kool Acquisition Corporation, a Delaware corporation (Purchaser) and, solely with respect to Section 9.12 thereof, The Related Companies, L.P., a New York
limited partnership (Parent Guarantor).
Pursuant to the Merger Agreement, and on the terms and subject to the conditions
described therein, on September 12, 2012, Purchaser commenced a cash tender offer (the Offer) to purchase all of the Companys issued and outstanding shares of common stock, par value $0.01 per share (Common Stock),
at a price of $5.00 per share, net to the holder in cash, without interest (the Per Share Amount), subject to any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated
September 12, 2012 (the Offer to Purchase), and the related Letter of Transmittal (the Letter of Transmittal which, together with the Offer to Purchase, constitute the Offer), which were attached as exhibits
to the Tender Offer Statement on Schedule TO, filed by Purchaser with the U.S. Securities and Exchange Commission (the SEC) on September 12, 2012.
The Offer expired at midnight, New York City time, on October 10, 2012. On October 11, 2012, Parent announced the results of the Offer. According to the depositary for the Offer, as of the
expiration of the Offer, approximately 3,962,679 of the outstanding shares of Common Stock (excluding 14,938 shares of Common Stock subject to notice of guaranteed of delivery) had been validly tendered and not properly withdrawn in the Offer,
representing approximately 62.05% of the outstanding shares of Common Stock on a fully diluted basis, and therefore satisfied the minimum tender condition of the Offer (which required the tender of a majority of the Companys
outstanding shares of Common Stock on a fully diluted basis. Purchaser accepted for payment all validly tendered Shares. Based on the Per Share Amount and the number of shares of Common Stock validly tendered and accepted for payment (including
shares tendered by notice of guaranteed delivery), at the expiration of the Offer, the value of the shares of Common Stock accepted for payment by Purchaser pursuant to the Offer was approximately $19,888,085 million. On October 11, 2012, the
Company and the Parent Guarantor issued a joint press release announcing the completion of the Offer, a copy of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
On October 11, 2012, following the exercise of the Top-Up Option (as defined and described in Item 3.02 below), because Parent then owned more
than 90% of the outstanding shares of Common Stock, in accordance with the Merger Agreement and as permitted by applicable law, Purchaser merged with and into the Company (the Merger). At the effective time of the Merger (the
Effective Time), (i) the Company was the surviving corporation in the Merger and now is a wholly-owned subsidiary of Parent, and (ii) each outstanding share of Common Stock not validly tendered, accepted
for payment and paid for pursuant to the Offer, other than shares owned by the Company as treasury stock, by Parent or Purchaser, or by stockholders of the Company who validly exercise their
appraisal rights in accordance with Section 262 of the Delaware General Corporation Law, as amended (the DGCL), was converted into the right to receive the Per Share Amount. Following the Effective Time, the Common Stock was
delisted from the NASDAQ Global Select Market, and will be deregistered under the Securities Exchange Act of 1934, as amended (the Exchange Act) and the Company will no longer file periodic reports with the Securities and Exchange
Commission (the SEC) on account of the Common Stock.
Item 2.01. Completion of Acquisition or Disposition of Assets.
The information set forth in the Introduction above is incorporated by reference herein.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the Merger, on October 11, 2012, the Company notified the NASDAQ Stock Market (NASDAQ) of the completion of the Merger
and requested that NASDAQ file a notification with the Securities and Exchange Commission (the SEC) to delist and deregister the Common Stock. On October 11, 2012, NASDAQ filed with the SEC a Notification of Removal from Listing
and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), on Form 25 to delist and deregister the Common Stock, which will become effective 10 days after the Form 25 was filed
with the SEC. Upon effectiveness of the Form 25, the Company intends to file with the SEC a certification on Form 15 under the Exchange Act, requesting the deregistration of its Common Stock under Section 12(g) of the Exchange Act and the
suspension of its reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 3.02 Unregistered Sale of Equity
Securities.
In order to complete the Merger, on October 11, 2012, pursuant to Section 1.4 of the Merger
Agreement, Purchaser exercised its top-up option (the Top-Up Option) to purchase additional Shares, and the Company issued 17,852,908 shares of Common Stock (the Top-Up Shares) to Purchaser, at a price of $5.00 per share.
Purchaser paid for the Top-Up Shares by delivery of cash equal to the aggregate par value of the Top-Up Shares and a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid
in cash. The Top-Up Shares, when added to the number of shares directly or indirectly owned by Parent and Purchaser at the time of exercise of the Top-Up Option, represented more than 90% of the shares of Common Stock outstanding immediately after
the issuance of the Top-Up Shares, which ensured that Purchaser and the Company could effect the Merger under applicable Delaware law. The Top-Up Shares were issued without registration under the Securities Act of 1933, as amended (the
Securities Act), in reliance upon an exemption from registration pursuant to Section 4(2) of the Securities Act, as a transaction by an issuer not involving a public offering.
Item 3.03. Modification of Rights of Security Holders.
The information set forth in Item 3.01 above is incorporated by reference herein.
At the effective time of the Merger, holders of Common Stock ceased to have any rights as holders of Common Stock (other than their right to receive the Per Share Amount, net to the selling shareholder in
cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions of the Merger Agreement) and, accordingly, no longer have any interest in the Companys future earnings or growth.
Item 5.01. Changes in Control of Registrant.
The information set forth in the Introduction above is incorporated by reference herein.
The
other information required by Item 5.01(a) of Form 8-K is contained in (i) the Companys Solicitation/Recommendation Statement on Schedule 14D-9, originally filed with the SEC on September 12, 2012, including the Information
Statement comprising Annex I thereto, as subsequently amended and supplemented, and (ii) the Tender Offer Statement on Schedule TO, originally filed by Parent and Purchaser with the SEC on September 12, 2012, as subsequently amended and
supplemented, and such information is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the Merger and
as contemplated by the Merger Agreement, each member of the Companys board of directors prior to the Merger voluntarily resigned from the Companys board of directors effective as of October 11, 2012. Pursuant to the terms of the
Merger Agreement, on October 11, 2012, each of Jeff. T. Blau, Bruce A. Beal, Jr. and Richard OToole became a member of the Companys board of directors following the Effective Time.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change of Fiscal Year.
Pursuant to the Merger Agreement, following the Effective Time, the Companys amended and restated certificate of incorporation in effect immediately prior to the Effective Time was amended and
restated (the Amended and Restated Charter) to be in the form of the certificate of incorporation set forth as Exhibit B to the Merger Agreement. In addition, following the Effective Time, the Companys amended and restated bylaws
in effect immediately prior to the Effective Time were amended and restated (the Amended and Restated Bylaws) in their entirety to conform substantially to Purchasers Bylaws as in effect immediately prior to the Effective Time.
Copies of the Amended and Restated Charter and the Amended and Restated Bylaws are filed as
Exhibits 3.1 and 3.2 to the Companys Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01 Financial
Statements and Exhibits.
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Exhibit
Number
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Description
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3.1
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Second Amended and Restated Certificate of Incorporation of KSW, Inc.
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3.2
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Second Amended and Restated Bylaws of KSW, Inc.
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99.1
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Joint Press Release dated October 11, 2012, issued by the Company and Parent Guarantor.
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Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995 of the
Company: Some of the statements in this press release constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and the Securities Exchange Act of 1934. These statements
are related to future events, other future financial performance or business strategies, and may be identified by terminology such as may, will, should, expects, scheduled,
plans, intends, anticipates, believes, estimates, potential, or continue, or the negative of such terms, or other comparable terminology. These statements are
only predictions and are subject to risks and uncertainties that could cause actual results to differ materially from those expressed in the forward-looking statements. In evaluating these statements, you should specifically consider the factors
discussed in filings with the Securities and Exchange Commission, including the annual report on Form 10-K for the year ended December 31, 2011, the Companys quarterly reports on Form 10-Q, and periodic reports on Form 8-K. Do not rely on
any forward-looking statement, as the Company cannot predict or control many of the factors that ultimately may affect its ability to achieve the results estimated. The Company makes no promise to update any forward-looking statement, whether as a
result of changes in underlying factors, new information, future events or otherwise.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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KSW, INC.
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By:
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/s/ James F. Oliviero
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Date: October 11, 2012
EXHIBIT INDEX
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Exhibit
Number
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Description
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3.1
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Second Amended and Restated Certificate of Incorporation of KSW, Inc.
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3.2
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Second Amended and Restated Bylaws of KSW, Inc.
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99.1
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Joint Press Release dated October 11, 2012, issued by the Company and Parent Guarantor.
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