UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
KSW, INC.
(Name of Issuer)
Common Stock,
Par Value $0.01 per share
(Title of Class of Securities)
48268R106
(CUSIP Number)
Richard OToole
Executive Vice President
Kool Acquisition LLC
c/o The Related Companies, L.P.
60 Columbus Circle
New York, NY 10023
Telephone: (212) 801-1000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Jonathan Klein
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020-1104
Telephone: (212) 335-4500
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications)
October 10, 2012
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box.
¨
Note:
Schedules filed in paper format
shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7(b) for other parties to whom copies are to be sent.
*
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The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
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The information
required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (
Act
) or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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1.
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N
AME
OF
R
EPORTING
P
ERSON
I.R.S. I
DENTIFICATION
N
O
.
The Related Companies, L.P. (I.R.S. Identification No. 13-3676645)
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2.
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C
HECK
THE
A
PPROPRIATE
B
OX
IF
A
M
EMBER
OF
A
G
ROUP
(a)
¨
(b)
x
|
|
|
3.
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|
SEC U
SE
O
NLY
|
|
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4.
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|
S
OURCE
OF
F
UNDS
WC
|
|
|
5.
|
|
C
HECK
IF
D
ISCLOSURE
OF
L
EGAL
P
ROCEEDINGS
I
S
R
EQUIRED
P
URSUANT
TO
I
TEMS
2(
D
)
OR
2(
E
)
|
|
¨
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6.
|
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C
ITIZENSHIP
OR
P
LACE
OF
O
RGANIZATION
New York
|
|
|
N
UMBER
OF
S
HARES
B
ENEFICIALLY
O
WNED
B
Y
E
ACH
R
EPORTING
P
ERSON
W
ITH
|
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7.
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S
OLE
V
OTING
P
OWER
0
|
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|
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8.
|
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S
HARED
V
OTING
P
OWER
21,830,525 shares
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9.
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S
OLE
D
ISPOSITIVE
P
OWER
0
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10.
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S
HARED
D
ISPOSITIVE
P
OWER
21,830,525 shares
|
|
|
11.
|
|
A
GGREGATE
A
MOUNT
B
ENEFICIALLY
O
WNED
BY
E
ACH
R
EPORTING
P
ERSON
21,830,525 shares
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|
|
12.
|
|
C
HECK
IF
THE
A
GGREGATE
A
MOUNT
IN
R
OW
(11) E
XCLUDES
C
ERTAIN
S
HARES
|
|
¨
|
13.
|
|
P
ERCENT
OF
C
LASS
R
EPRESENTED
BY
A
MOUNT
IN
R
OW
(11)
100%
|
|
|
14.
|
|
T
YPE
OF
R
EPORTING
P
ERSON
PN
|
|
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2
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1.
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N
AME
OF
R
EPORTING
P
ERSON
I.R.S. I
DENTIFICATION
N
O
.
The Related Realty Group, Inc. (I.R.S. Identification No.
13-3627393)
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|
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2.
|
|
C
HECK
THE
A
PPROPRIATE
B
OX
IF
A
M
EMBER
OF
A
G
ROUP
(a)
¨
(b)
x
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|
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3.
|
|
SEC U
SE
O
NLY
|
|
|
4.
|
|
S
OURCE
OF
F
UNDS
AF
|
|
|
5.
|
|
C
HECK
IF
D
ISCLOSURE
OF
L
EGAL
P
ROCEEDINGS
I
S
R
EQUIRED
P
URSUANT
TO
I
TEMS
2(
D
)
OR
2(
E
)
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¨
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6.
|
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C
ITIZENSHIP
OR
P
LACE
OF
O
RGANIZATION
Delaware
|
|
|
N
UMBER
OF
S
HARES
B
ENEFICIALLY
O
WNED
B
Y
E
ACH
R
EPORTING
P
ERSON
W
ITH
|
|
7.
|
|
S
OLE
V
OTING
P
OWER
0
|
|
|
|
8.
|
|
S
HARED
V
OTING
P
OWER
21,830,525 shares
|
|
|
|
9.
|
|
S
OLE
D
ISPOSITIVE
P
OWER
0
|
|
|
|
10.
|
|
S
HARED
D
ISPOSITIVE
P
OWER
21,830,525 shares
|
|
|
11.
|
|
A
GGREGATE
A
MOUNT
B
ENEFICIALLY
O
WNED
BY
E
ACH
R
EPORTING
P
ERSON
21,830,525 shares
|
|
|
12.
|
|
C
HECK
IF
THE
A
GGREGATE
A
MOUNT
IN
R
OW
(11) E
XCLUDES
C
ERTAIN
S
HARES
|
|
¨
|
13.
|
|
P
ERCENT
OF
C
LASS
R
EPRESENTED
BY
A
MOUNT
IN
R
OW
(11)
100%
|
|
|
14.
|
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T
YPE
OF
R
EPORTING
P
ERSON
CO
|
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3
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1.
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N
AME
OF
R
EPORTING
P
ERSON
I.R.S. I
DENTIFICATION
N
O
.
Kool Acquisition LLC
|
|
|
2.
|
|
C
HECK
THE
A
PPROPRIATE
B
OX
IF
A
M
EMBER
OF
A
G
ROUP
(a)
¨
(b)
x
|
|
|
3.
|
|
SEC U
SE
O
NLY
|
|
|
4.
|
|
S
OURCE
OF
F
UNDS
AF
|
|
|
5.
|
|
C
HECK
IF
D
ISCLOSURE
OF
L
EGAL
P
ROCEEDINGS
I
S
R
EQUIRED
P
URSUANT
TO
I
TEMS
2(
D
)
OR
2(
E
)
|
|
¨
|
6.
|
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C
ITIZENSHIP
OR
P
LACE
OF
O
RGANIZATION
Delaware
|
|
|
N
UMBER
OF
S
HARES
B
ENEFICIALLY
O
WNED
B
Y
E
ACH
R
EPORTING
P
ERSON
W
ITH
|
|
7.
|
|
S
OLE
V
OTING
P
OWER
0
|
|
|
|
8.
|
|
S
HARED
V
OTING
P
OWER
21,830,525 shares
|
|
|
|
9.
|
|
S
OLE
D
ISPOSITIVE
P
OWER
0
|
|
|
|
10.
|
|
S
HARED
D
ISPOSITIVE
P
OWER
21,830,525 shares
|
|
|
11.
|
|
A
GGREGATE
A
MOUNT
B
ENEFICIALLY
O
WNED
BY
E
ACH
R
EPORTING
P
ERSON
21,830,525 shares
|
|
|
12.
|
|
C
HECK
IF
THE
A
GGREGATE
A
MOUNT
IN
R
OW
(11) E
XCLUDES
C
ERTAIN
S
HARES
|
|
¨
|
13.
|
|
P
ERCENT
OF
C
LASS
R
EPRESENTED
BY
A
MOUNT
IN
R
OW
(11)
100%
|
|
|
14.
|
|
T
YPE
OF
R
EPORTING
P
ERSON
CO
|
|
|
4
|
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|
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1.
|
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N
AME
OF
R
EPORTING
P
ERSON
I.R.S. I
DENTIFICATION
N
O
.
Kool Acquisition Corporation
|
|
|
2.
|
|
C
HECK
THE
A
PPROPRIATE
B
OX
IF
A
M
EMBER
OF
A
G
ROUP
(a)
¨
(b)
x
|
|
|
3.
|
|
SEC U
SE
O
NLY
|
|
|
4.
|
|
S
OURCE
OF
F
UNDS
AF
|
|
|
5.
|
|
C
HECK
IF
D
ISCLOSURE
OF
L
EGAL
P
ROCEEDINGS
I
S
R
EQUIRED
P
URSUANT
TO
I
TEMS
2(
D
)
OR
2(
E
)
|
|
¨
|
6.
|
|
C
ITIZENSHIP
OR
P
LACE
OF
O
RGANIZATION
Delaware
|
|
|
N
UMBER
OF
S
HARES
B
ENEFICIALLY
O
WNED
B
Y
E
ACH
R
EPORTING
P
ERSON
W
ITH
|
|
7.
|
|
S
OLE
V
OTING
P
OWER
0
|
|
|
|
8.
|
|
S
HARED
V
OTING
P
OWER
21,830,525 shares
|
|
|
|
9.
|
|
S
OLE
D
ISPOSITIVE
P
OWER
0
|
|
|
|
10.
|
|
S
HARED
D
ISPOSITIVE
P
OWER
21,830,525 shares
|
|
|
11.
|
|
A
GGREGATE
A
MOUNT
B
ENEFICIALLY
O
WNED
BY
E
ACH
R
EPORTING
P
ERSON
21,830,525 shares
|
|
|
12.
|
|
C
HECK
IF
THE
A
GGREGATE
A
MOUNT
IN
R
OW
(11) E
XCLUDES
C
ERTAIN
S
HARES
|
|
¨
|
13.
|
|
P
ERCENT
OF
C
LASS
R
EPRESENTED
BY
A
MOUNT
IN
R
OW
(11)
100%
|
|
|
14.
|
|
T
YPE
OF
R
EPORTING
P
ERSON
CO
|
|
|
5
|
|
|
|
|
|
|
|
|
1.
|
|
N
AME
OF
R
EPORTING
P
ERSON
I.R.S. I
DENTIFICATION
N
O
.
Stephen M. Ross
|
|
|
2.
|
|
C
HECK
THE
A
PPROPRIATE
B
OX
IF
A
M
EMBER
OF
A
G
ROUP
(a)
¨
(b)
x
|
|
|
3.
|
|
SEC U
SE
O
NLY
|
|
|
4.
|
|
S
OURCE
OF
F
UNDS
AF
|
|
|
5.
|
|
C
HECK
IF
D
ISCLOSURE
OF
L
EGAL
P
ROCEEDINGS
I
S
R
EQUIRED
P
URSUANT
TO
I
TEMS
2(
D
)
OR
2(
E
)
|
|
¨
|
6.
|
|
C
ITIZENSHIP
OR
P
LACE
OF
O
RGANIZATION
United States
|
|
|
N
UMBER
OF
S
HARES
B
ENEFICIALLY
O
WNED
B
Y
E
ACH
R
EPORTING
P
ERSON
W
ITH
|
|
7.
|
|
S
OLE
V
OTING
P
OWER
0
|
|
|
|
8.
|
|
S
HARED
V
OTING
P
OWER
21,830,525 shares
|
|
|
|
9.
|
|
S
OLE
D
ISPOSITIVE
P
OWER
0
|
|
|
|
10.
|
|
S
HARED
D
ISPOSITIVE
P
OWER
21,830,525 shares
|
|
|
11.
|
|
A
GGREGATE
A
MOUNT
B
ENEFICIALLY
O
WNED
BY
E
ACH
R
EPORTING
P
ERSON
21,830,525 shares
|
|
|
12.
|
|
C
HECK
IF
THE
A
GGREGATE
A
MOUNT
IN
R
OW
(11) E
XCLUDES
C
ERTAIN
S
HARES
|
|
¨
|
13.
|
|
P
ERCENT
OF
C
LASS
R
EPRESENTED
BY
A
MOUNT
IN
R
OW
(11)
100%
|
|
|
14.
|
|
T
YPE
OF
R
EPORTING
P
ERSON
IN
|
|
|
6
This Amendment No. 1 to Schedule 13D amends and supplements the Schedule 13D originally filed jointly
on September 12, 2012 (the
Schedule 13D
) by The Related Companies, L.P., a New York limited partnership (
Parent Guarantor
), The Related Realty Group, Inc., a Delaware corporation, wholly-owned by Stephen M.
Ross and the general partner of Parent Guarantor (the
General Partner
), Kool Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent Guarantor (
Parent
), Kool Acquisition
Corporation, a Delaware limited liability company and a wholly-owned subsidiary of Parent Guarantor (
Purchaser
) and Stephen M. Ross (Parent Guarantor, the General Partner, Parent, Purchaser and Stephen M. Ross, collectively, the
Reporting Persons
), pursuant to a joint filing agreement filed with the original Schedule 13D, relating to the tender offer (as it may be amended from time to time, the
Offer
) by Purchaser to purchase all of the
issued and outstanding shares of common stock, par value $0.01 per share (each, a
Share
, and collectively, the
Shares
or the
KSW Common Stock
), of KSW, Inc., a Delaware corporation
(
KSW
), at a price per Share of $5.00 net to the seller in cash, without interest and less applicable withholding taxes (such amount, or any higher amount per Share paid pursuant to the Offer in accordance with the Merger Agreement
(as defined below), the
Offer Price
), and the subsequent merger (the
Merger
) of Purchaser with and into KSW upon the terms and subject to the conditions set forth in the Agreement and Plan of Merger, dated as of
September 7, 2012 (the
Merger Agreement
), by and among Purchaser, Parent, KSW, and solely with respect to Section 9.12 of the Merger Agreement, Parent Guarantor.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Schedule 13D.
This Schedule 13D is hereby amended as follows:
ITEM 4. PURPOSE OF TRANSACTION
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Item 4, Item 5(a), (b) and (c) and Item 6 of the Schedule 13D are hereby amended and supplemented by adding the following at the end of each section thereof:
The Offer expired at 12:00 midnight, New York City time, on Wednesday October 10, 2012. According to American Stock
Transfer & Trust Company, LLC, the depositary for the Offer, as of the expiration of the Offer, approximately 3,962,679 Shares were validly tendered and not properly withdrawn in the Offer, representing approximately 62.05% of the Shares
outstanding on a fully diluted basis (as determined pursuant to the Merger Agreement). In addition, approximately 14,938 Shares were delivered through notices of guaranteed delivery. If all guaranteed delivery Shares are received, approximately
62.28% of the outstanding Shares on a fully diluted basis will have been tendered. All Shares that were validly tendered and not properly withdrawn in the Offer have been accepted for purchase and payment at the Offer Price by the Purchaser, and all
holders of these Shares will be paid promptly in accordance with the terms of the Offer. On October 11, 2012, Parent Guarantor and KSW issued a joint press release announcing that Purchaser accepted for payment all Shares that were validly
tendered and not properly withdrawn prior to expiration of the Offer in accordance with the terms of the Offer. A copy of the joint press release is attached hereto as Exhibit 7.04 and incorporated by reference herein.
On October 11, 2012, Purchaser also exercised its top-up option under the Merger Agreement to purchase from KSW 17,852,908
newly-issued shares of KSW Common Stock (the
Top-Up Shares
) at a price per Share equal to the Offer Price, that when added to the number of Shares owned directly or indirectly by Parent and Purchaser (other than any Shares subject
to notices of guaranteed delivery) at the time of such exercise, equals at least one (1) Share more than 90% of the number of shares of KSW Common Stock then outstanding (after giving effect to the issuance of the Top-Up Shares pursuant to the
exercise of the top-up option). As a result of the Offer (including Shares subject to notices of guaranteed delivery) and the issuance of the Top-Up Shares, Purchaser owned approximately 21,830,525 Shares.
7
Purchaser completed its acquisition of KSW through the merger of Purchaser with and into
KSW, with KSW continuing as the surviving corporation in the Merger and becoming an indirect wholly-owned subsidiary of Parent Guarantor, in accordance with the short-form merger provisions of the Delaware General Corporation Law (the
DGCL
). The Merger became effective (the
Effective Time
) on October 11, 2012 at 3:40 pm, upon the filing by Purchaser of a certificate of merger with the Secretary of State of the State of Delaware. Pursuant
to the terms of the Merger Agreement, at the Effective Time each Share (other than Shares directly owned by Parent or any of its subsidiaries (including Purchaser) or held by KSW or any of its subsidiaries as treasury shares immediately prior to the
Effective Time, which were canceled without the payment of any consideration, and Shares outstanding immediately prior to the Effective Time held by a stockholder who is entitled to demand, and who properly demands, appraisal for such Shares in
compliance with Section 262 of the DGCL) were canceled and converted into the right to receive the Merger Consideration. On October 11, 2012, KSW notified the NASDAQ Stock Market (
NASDAQ
) of the completion of the Merger
and requested that trading of the KSW Common Stock on NASDAQ be suspended.
The foregoing description of the Merger Agreement
and related transactions does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 to KSWs Current Report on Form 8-K, filed with the U.S.
Securities and Exchange Commission (the
SEC
) on September 10, 2012 and is incorporated herein by reference.
In connection with the consummation of the Merger, on October 11, 2012, each of the following members of KSWs Board of Directors (the
Board
) resigned from the Board: Stanley
Kreitman, John Cavanagh, Edward T. LaGrassa, Floyd Warkol and Warren O. Kogan.
Pursuant to the terms of the Merger Agreement,
on October 11, 2012, the sole directors of Purchaser immediately prior to the Effective Time, which were Jeff T. Blau, Bruce A. Beal, Jr. and Richard OToole, became the sole directors of KSW following the Merger. Information about
Mr. Blau, Mr. Beal and Mr. OToole is contained in Annex II to the Schedule 14D-9 filed by KSX on September 12, 2012.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:
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|
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Exhibit
|
|
Description
|
|
|
7.04.
|
|
Joint Press Release dated October 11, 2012, issued by Parent Guarantor and KSW (incorporated by reference to Exhibit (a)(5)(C) to the Schedule TO filed by Purchaser, Parent and
Parent Guarantor with the SEC on October 11, 2012).
|
8
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: October 11, 2012
Signature:
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THE RELATED COMPANIES, L.P.
|
|
|
By:
|
|
/s/ Richard OToole
|
Name:
|
|
Richard OToole
|
Title:
|
|
Executive Vice President
|
|
THE RELATED REALTY GROUP, INC.
|
|
|
By:
|
|
/s/ Richard OToole
|
Name:
|
|
Richard OToole
|
Title:
|
|
Executive Vice President
|
|
KOOL ACQUISITION LLC
|
|
|
By:
|
|
/s/ Richard OToole
|
Name:
|
|
Richard OToole
|
Title:
|
|
Executive Vice President
|
|
KOOL ACQUISITION CORPORATION
|
|
|
By:
|
|
/s/ Richard OToole
|
Name:
|
|
Richard OToole
|
Title:
|
|
Executive Vice President
|
|
STEPHEN M. ROSS
|
|
|
By:
|
|
/s/ Stephen M. Ross
|
|
|
Stephen M. Ross, individually
|
|
|
|
9
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