UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
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the Securities Exchange
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Definitive Proxy Statement
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Definitive Additional Materials
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KSW, INC.
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
to be held May 9, 2012
NOTICE IS HEREBY GIVEN
that the Annual Meeting of Stockholders of KSW, Inc., a Delaware corporation (the "Company"), will be held on May 9,
2012, at 2:00 p.m., New York time, at the LaGuardia Plaza Hotel at LaGuardia Airport, Queens, NY, for the following purposes:
1. to elect one Class II Director
to serve until 2015, or until his successor shall have been duly elected and qualified ("Proposal 1"); and
2. to ratify the appointment of
BDO USA, LLP as independent auditors of the Company for the fiscal year ending December 31, 2012 ("Proposal 2"); and
3. to consider a shareholder proposal
described in the annexed proxy statement; and
4. to transact such other business
as may properly come before the meeting or any adjournment thereof.
Stockholders of record
at the close of business on March 30, 2012 will be entitled to notice of and to vote at the meeting and any adjournments.
All stockholders are
cordially invited to attend the meeting in person. However, to assure your representation at the meeting, you are urged to SIGN,
DATE AND RETURN THE ENCLOSED PROXY CARD IN THE ENVELOPE PROVIDED, in order that as many shares as possible may be represented at
the meeting. Any stockholder attending the meeting may vote in person even if he or she has returned a proxy card.
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Sincerely,
James F. Oliviero
General Counsel
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Long Island City, New York
Dated: March 30, 2012
NOTICE OF INTERNET AVAILABILITY OF
PROXY MATERIAL
:
The Notice of meeting, proxy statement and
proxy card are available at http://materials.proxyvote.com/48268R
KSW, INC.
37-16 23rd Street
Long Island City, New York 11101
(718) 361-6500
_______
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
May 9, 2012
_______
GENERAL INFORMATION
General
The accompanying proxy is solicited by
and on behalf of the Board of Directors of KSW, Inc., a Delaware corporation (the "Company"), to be voted at the 2012
Annual Meeting of Stockholders (the "Annual Meeting") to be held at the LaGuardia Plaza Hotel at LaGuardia Airport, Queens,
NY, on May 9, 2012, at 2:00 p.m., New York time, and at any and all adjournments thereof. The Annual Meeting is being held for
the purposes set forth in the accompanying Notice of Annual Meeting of Stockholders.
Cost of Solicitation
The cost of solicitation will be borne
by the Company. This proxy statement and the accompanying proxy are first being sent to the stockholders of the Company on or about
March 30, 2012. A copy of the Company’s 2011 Annual Report on Form 10-K is enclosed herewith.
Stockholders Entitled to Vote
Pursuant to the By-Laws of the Company,
the Board of Directors has fixed the time and date for the determination of stockholders entitled to notice of and to vote at the
meeting as of the close of business on March 30, 2012. Accordingly, only stockholders of record on such date and at such time will
be entitled to vote at the meeting, notwithstanding any transfer of any stock on the books of the Company thereafter.
At the close of business on March 12, 2012,
the Company had outstanding 6,366,625 shares of Common Stock, $.01 par value per share (the "Common Stock"), each of
which entitled the holder to one vote. There were 52,700 issued shares held by the Company in its treasury.
Required Vote
The presence of the holders of a majority
of the outstanding shares of Common Stock entitled to vote at the Annual Meeting, present in person or represented by proxy, is
necessary to constitute a quorum. The affirmative vote of the holders of a plurality of the shares of Common Stock present in person
or represented by proxy at the meeting and which have actually been voted is required for the election of each director. For all
other matters, the affirmative vote of the holders of a majority of the shares of Common Stock present in person or represented
by proxy at the meeting and entitled to vote on the subject matter and which have actually been voted is required for approval.
Proxies marked as abstaining (including proxies containing “broker non-votes”) on any matter to be acted upon by stockholders
will be treated as present at the meeting for purposes of determining a quorum but will not be counted as votes cast on such matters.
A “broker non-vote” occurs when a broker holds shares of Common Stock for a beneficial owner and does not vote on a
particular proposal because the broker does not have discretionary voting power for that particular item and has not received instructions
from the beneficial owner. If a quorum is present, abstentions will have no effect on the election of directors or the proposal
for the ratification of the reappointment of independent auditors.
A proxy may be revoked by the stockholder
at any time prior to its being voted. Any proxy given pursuant to this solicitation may be revoked by the person giving it at any
time before its use by delivery to the Secretary of the Company of a written notice of revocation, or a duly executed proxy bearing
a later date, or by attending the meeting and voting in person.
If a proxy is properly signed and is not
revoked by the stockholder, the shares it represents will be voted at the meeting in accordance with the instructions of the stockholder.
If the proxy is signed and returned without specifying choices, the shares will be voted in favor of the election as director of
the nominee listed in Proposal 1, in favor of Proposal 2 and as recommended by the Board of Directors with regard to all other
matters, or if no such recommendation is given in the discretion of the persons named in the proxy. Votes are tabulated at the
Annual Meeting by inspectors of election.
STOCK
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information
relating to the beneficial ownership of the Common Stock as of March 22, 2012 by (i) those persons who were known by the Company
to be the beneficial owners of more than 5% of the outstanding Common Stock, (ii) each of the Company’s directors and nominees,
(iii) each executive officer of the Company named in the table referenced under the caption “Compensation of Executives”
and (iv) all of the Company’s directors and executive officers as a group. Except as indicated in the footnotes to the table,
the persons named in the table have sole voting and investment power with respect to all shares of Common Stock shown as beneficially
owned by them, subject to community property laws where applicable. Unless otherwise indicated, the address of each person named
in the table below is c/o KSW, Inc., 37-16 23
rd
Street, Long Island City, New York 11101.
Name of Beneficial Owner
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Number
of
Shares
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Percentage
Ownership
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Floyd Warkol
5 Renaissance Square
White Plains, NY 10601
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661,590
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(1)
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10.1%
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Stanley Kreitman
4 Chestnut Drive
East Hills, NY 11576
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21,000
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*
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John Cavanagh
222 Mill Dam Road
Centerport, NY 11721-0224
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21,000
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(2)
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*
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Edward T. LaGrassa
120 Warwick Avenue
Douglaston Manor, NY 11363
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20,000
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(3)
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*
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Warren O. Kogan
13345 S.E. 97
th
Terrace Road
Summerfield, FL 34491
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20,000
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(4)
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*
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Richard W. Lucas
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21,000
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(5)
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*
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James F. Oliviero
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-------
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--
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Vincent Terraferma
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-------
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--
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All directors and executive officers
as a group (8 persons)
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764,590
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(6)
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11.7%
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* Less
than one percent.
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(1)
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Includes 52,000 shares owned by the Floyd and Barbara
Warkol Charitable Foundation, of which Mr. Warkol is a Trustee.
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(2)
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Includes options to purchase 7,001 shares exercisable within 60 days.
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(3)
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Options to purchase 20,000 shares exercisable within 60 days.
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(4)
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Options to purchase 20,000 shares exercisable within
60 days.
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(5)
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Includes options to purchase 7,000 shares exercisable
within 60 days.
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(6)
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Includes options to purchase 54,001 shares exercisable
within 60 days.
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PROPOSAL NO. 1
ELECTION OF DIRECTORS
General
The Certificate of Incorporation of the
Company provides that the Company's business shall be managed by a Board of Directors of not less than three and not more than
twelve, with the exact number fixed by the Board of Directors from time to time. There are currently five seats on the Board of
Directors. The Board of Directors of the Company is divided into three classes: Class I, Class II and Class III. The directors
in each class serve terms of three years each and until their successors are elected and qualified.
There is one position on the Board of Directors
to be voted upon. Pursuant to the Company’s By-Laws, the term of Class II Director Edward T. LaGrassa expires on the date
of the Annual Meeting. The independent directors of the Board of Directors have unanimously nominated him for a three-year term,
expiring at the 2015 annual meeting. Proxies are being solicited only for this nominee.
The nominee has consented to being named
in this proxy statement and to serve if elected. If the nominee becomes unable to accept nomination or election, the persons named
in the proxy may vote for a substitute nominee selected by the Board of Directors. The Company's management, however, has no present
reason to believe that the nominee will be unable to serve as director, if elected.
If a quorum is present, the nominee receiving the highest number
of votes will be elected to the Board of Directors. Abstentions and broker non-votes are not counted in the election of directors.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR THE NOMINEE
Procedures for Stockholder Nominations
for Directors
The By-Laws of the Company provide that
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 a stockholder (the “Nominator”) who meets the criteria, and complies with the procedures, set
forth in this By-Law 13. Each Nominator may nominate one candidate for election at a meeting (the “Nominee”). At a
Nominator’s request, the Company shall include in its proxy materials for the applicable meeting of stockholders the name
of the Nominee and the Nominator’s Statement (as defined below). All nominations by Nominators must be made pursuant to timely
notice in proper written form to the Secretary.
To be eligible to make a nomination,
a Nominator must:
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(i)
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have beneficially owned 5% or more of the Company’s outstanding common stock (the “Required
Shares”) continuously for at least one year;
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(ii)
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execute an undertaking that the Nominator agrees to (1) assume all liability of any violation of
law or regulation arising out of the Nominator’s communications with stockholders, including the disclosure required by By-Law
13(c) and (2) to the extent it uses soliciting material other than the Company’s proxy materials, comply with all applicable
laws and regulations; and
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(iii)
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be current in all required filings with the Securities and Exchange Commission regarding such Nominator’s
ownership of the Company’s common stock.
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(c) To be timely, a Nominator’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 Nominator 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 Nominator’s notice must set forth or include (i) the name and address, as
they appear on the Company's books, of the Nominator and of the beneficial owner, if any, on whose behalf the nomination is made;
(ii) a representation that the
Nominator meets the criteria, and the undertaking, set forth in By-Law 13(b); (iii) the class and
number of shares of stock of the Company owned beneficially and of record by the Nominator 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
Nominator, (B) the beneficial owner on whose behalf the notice is given, (C) the Nominee, and (D) any other person or persons (naming
such person or persons) pursuant to which the nomination is to be made by the Nominator; (v) such other information regarding the
Nominee proposed by the Nominator 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 the Nominee to serve as a director of the Company if so elected. The Nominator shall have the option to furnish
a statement, not to exceed 500 words, in support of the Nominee’s candidacy (the “Nominator’s Statement”)
at the same time it provides such notice to the Secretary. 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 Nominator 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.
Directors and Nominees
The following table sets forth certain
information concerning the nominee for election as a Class II Director of the Company and the continuing Class I Directors and
Class III Directors of the Company.
Name
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Age
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Director Since
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NOMINEE FOR ELECTION AS CLASS II DIRECTOR
TO SERVE UNTIL 2015
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Edward T. LaGrassa
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64
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2009
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CONTINUING AS CLASS III DIRECTORS
TO SERVE UNTIL 2013
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Floyd Warkol
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64
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1994
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Warren O. Kogan
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85
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2006
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CONTINUING AS CLASS I
DIRECTORS TO SERVE UNTIL 2014
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Stanley Kreitman
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80
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1999
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John Cavanagh
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76
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2004
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The Company is not aware of any family
relationship between any director, nominee for director or executive officer of the Company.
Mr. Floyd Warkol has been principally employed
as Chairman of the Board since December 15, 1995 and as President, Secretary and Chief Executive Officer of the Company and as
Chairman and Chief Executive Officer of its subsidiary, KSW Mechanical Services, Inc. ("KSW Mechanical"), since January
1994. Mr. Warkol founded the predecessor of the Company in 1980, and has been primarily responsible for the Company’s growth
and success throughout its existence. The Company believes that his experience and knowledge of the Company’s operations
makes him uniquely qualified to Chair the Board of Directors.
Mr. Warren O. Kogan was appointed to the
Board of Directors on March 10, 2006 and elected by the stockholders on May 8, 2007. He has been an arbitrator for the American
Arbitration Association, and since 1990 he has been a construction and real estate private consultant. From 1990 to 2000 he was
Executive Vice President of the Subcontractors Trade Association of New York City. From 1980 to 1990, he was President and Chief
Executive Officer of H. Sand & Co., a major mechanical and HVAC contractor. The Company believes that Mr. Kogan’s experience
as an executive for a large mechanical contracting company provides important oversight over the Company’s operations.
Mr. Stanley Kreitman was elected to the
Board of Directors by the Company’s stockholders on May 18, 1999 after having been appointed as a director by the other members
of the Board of Directors effective February 18, 1999. Since 1994, Mr. Kreitman has been Chairman of Manhattan Associates, an investment
firm, and currently is a Board member of the N.Y.C. Department of Corrections, a position he has held since 1998. He has been a
senior advisor to Signature Bank from 2001 to present. He is a published author and lecturer on business investment matters. He
is a member of the Board of Directors of Medallion Financial Corp. (NASDAQ), Capital Lease Finance, Inc. (NYSE) and CCA Industries,
Inc. (AMEX). During the past five years, he has been a director of Geneva Mortgage Corp. (OTC) and Century Bank, Sarasota, Florida.
The Company believes that Mr. Kreitman’s experience in banking and his contacts in the real estate industry aid the Company
in managing its finances, and in the development of new business.
Mr. John Cavanagh was elected to the Board
of Directors at the annual meeting of stockholders on May 10, 2005. Since 1998, he has been President of John A. Cavanagh Consulting
Services, Inc., a construction management firm, and has been President of American Fire Suppressant Products, Inc. since 2005.
He has been President of Cavanagh/Stewart International, Inc. since 1998, and a Partner in Integrated Structural Systems, Inc.
and NEWCO Ventures, LLC since 2008. Until September 2003, he was the Vice Chairman of AMEC Construction Management, Inc. (formerly
known as Morse Diesel International), one of the largest construction management companies in the United States, where he was President
and Chief Operating Officer. He is a director of the Contractors’ Association of Greater New York, The New York Building
Congress, Visionary Vehicles, Inc., and the Building Trades Employer’s Association. The Company believes that Mr. Cavanagh’s
experience as a construction company executive, as well as his positions as an industry association leader, provides the Company
with both oversight and strategic planning assistance.
Mr. Edward T. LaGrassa was elected to the
Board of Directors at the annual meeting of stockholders, on May 7, 2009. Mr. LaGrassa is the Principal of Chilton Realty, Inc.,
a real estate investment banking and brokerage company, which he founded in 2001. Until 2005, he was the Director of Business Development
of Rose Associates, Inc. a prominent real estate firm. He is a licensed real estate broker and architect. The Company believes
that Mr. LaGrassa’s experience and contacts gained as a real estate executive and advisor assist the Company with the development
of new business and in evaluating potential projects.
INFORMATION REGARDING THE BOARD OF DIRECTORS
AND ITS COMMITTEES
Board Leadership Structure and Role
in Risk Oversight
Mr. Floyd Warkol serves both as Chairman
of the Board of Directors and Chief Executive Officer of the Company. The Board believes that it is appropriate for Mr. Warkol
to hold both positions since he is intimately familiar with the Company’s operations and is the largest individual shareholder.
Due to the size of the Board, there is no designated lead independent director. On a quarterly basis, Audit Committee members,
Mr. LaGrassa and Mr. Kogan, both of whom have extensive construction experience, review the Company’s projects with Mr. Warkol,
including the status of any claims for or against the Company and the appropriateness of revenue recognition on Company projects.
The entire Board reviews the status of the Company’s projects at each Board meeting, including any issues which could be
a risk to the Company or its operations.
Committees of the Board of Directors
The Board of Directors currently has, and
appoints the members of, standing Audit and Compensation Committees. Each member of the Audit and Compensation Committees has been
affirmatively determined to be an “independent director” by the Board of Directors in accordance with the rules and
regulations of the NASDAQ Stock Market (“NASDAQ”) and the Exchange Act. Other than the payment of attendance fees,
during 2011 there were no transactions, relationships or arrangements between the Company and any independent director. The members
of the Audit and Compensation Committees are as follows:
Audit Committee
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Compensation Committee
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Stanley Kreitman – Chair
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John Cavanagh – Chair
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Warren O. Kogan
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Stanley Kreitman
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Edward T. LaGrassa
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Warren O. Kogan
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Audit Committee
The Audit Committee meets with the Company’s
independent registered public accounting firm and management to assure that all are carrying out their respective responsibilities.
The Audit Committee is responsible for selecting, appointing and, as necessary, terminating the Company’s independent registered
public accounting firm, and reviews the performance and fees of the independent registered public accounting firm prior to appointing
it. The Audit Committee also meets with the independent registered public accountants, without management present, to discuss the
scope and results of their audit work, including the adequacy of internal controls and the quality of financial reporting. The
independent registered public accountants have full access to the Audit Committee.
The Audit Committee met four times during
the fiscal year ended December 31, 2011.
A written charter for the Audit Committee
was approved by the Board of Directors effective May 11, 2000. An amended written charter was approved by the Board of Directors
effective February 16, 2006. The Audit Committee Charter is available on the Company’s website at
www.kswmechanical.com
.
The Board of Directors has determined that
each of the members of the Audit Committee is “independent” under the listing standards of NASDAQ and under the independence
criteria established by the SEC for audit committee members.
The Board of Directors has also determined
that Mr. Kreitman is an “audit committee financial expert” as defined in Item 401(h)(2) of the SEC’s Regulation
S-K and is independent as that term is used in Item 7(d)(3)(iv) of Schedule 14A of the Exchange Act.
Compensation Committee
The Compensation Committee is responsible
for reviewing the performance of the Chief Executive Officer and determining his compensation. The Chief Executive Officer, in
turn, reviews the performance of each other member of senior management and determines their compensation levels. The Compensation
Committee periodically reviews compensation levels for competitiveness and reasonableness as compared to industry peers and competitors.
The Compensation Committee met twice during the fiscal year ended December 31, 2011. The Compensation Committee Charter is available
on the Company’s website at
www.kswmechanical.com
.
Nomination of Directors
Due to the size of the Board of Directors,
the Company does not have a nominating committee to select director nominees. All nominees for director are selected based on a
vote of the majority of the independent directors of the Board of Directors. The Board of Directors has determined that four of
the current five members of the Board of Directors (Messrs. Cavanagh, Kogan, Kreitman and LaGrassa) are “independent directors”
in accordance with the rules and regulations of NASDAQ. Only independent directors vote on Board of Director nominees.
The assessment by which the independent
directors of the Board of Directors consider candidates for director is based upon various criteria, including business experience
on a management level with a company which issues
audited financial statements, integrity and independence, demonstrated leadership
ability, diverse perspectives and the ability to exercise sound business judgment.
Nominees for directors should have the
ability to read and understand financial statements. Candidates with construction industry or real estate experience and contacts
are given special consideration. The Board of Directors also considers the candidate’s reputation and standing in the business
community, as well as participation in industry associations relevant to the Company’s business. The Board believes that
directors should have a diversity of experience in finance, construction and real estate, since each area of expertise is important
to the Company’s operations.
In the case of incumbent directors whose
terms of office are set to expire, the independent directors of the Board of Directors review such directors’ overall service
to the Company during their terms, including the number of meetings attended, level of participation, quality of performance and
any transactions of such directors with the Company during their terms. The experience and skills of each incumbent director, and
their respective abilities to contribute to the Board of Directors, are detailed in their biographies, which are summarized in
this proxy statement.
Consideration of new director nominee candidates
typically involves a series of internal discussions, review of information concerning candidates and interviews with selected candidates.
The independent directors identify potential candidates through recommendations from members of the Board of Directors, Company
management and stockholders, as well as in consultation with the Company’s legal, financial and auditing professionals and
with other members of the business community in general and the construction industry in particular. The Company does not pay fees
to such professionals or third parties for any such assistance.
The independent directors of the Board
of Directors will consider nominees for director recommended by stockholders provided the procedures set forth above under the
heading “Procedures for Stockholder Nominations of Directors” are followed by stockholders in submitting recommendations.
Stockholder nominations that comply with such procedures will be evaluated in the same manner (including using the same criteria
as set forth above) and will receive the same consideration as nominees recommended by the independent directors of the Board of
Directors.
Directors’ Attendance at Meetings
of the Board of Directors
The Board of Directors held a total of
four quarterly meetings in 2011, which does not include actions by written consent or committee meetings. Each director serving
during the fiscal year ended December 31, 2011 attended at least 75% of the aggregate of the total number of meetings of the Board
of Directors and the total number of meetings held by all committees of the Board of Directors on which he served.
Directors’ Attendance at Annual
Meetings of Stockholders
All members of the Board of Directors are
required to attend the Company’s annual meeting of stockholders. All members of the Board of Directors serving as directors
during the fiscal year ended December 31, 2011 attended the 2011 annual meeting of stockholders.
Stockholder Communications with Directors
Stockholder communications to the Board
of Directors may be sent by mail addressed to the Board of Directors generally, or to a member of the Board of Directors individually,
c/o James F. Oliviero, Director of Investor Relations, KSW, Inc., 37-16 23
rd
Street, Long Island City, NY 11101. All
communications so addressed will be immediately forwarded to the Board of Directors or the individual member of the Board of Directors,
as applicable.
AUDIT COMMITTEE REPORT
In accordance with SEC rules, the Audit Committee has prepared
the following report:
As part of its ongoing activities, the
Audit Committee has:
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·
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reviewed and discussed with management the Company’s audited consolidated financial statements
for the fiscal year ended December 31, 2011;
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·
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discussed with the independent registered public accounting firm the matters required to be discussed
by Auditing Standards Section 380, The Auditors’ Communication with those charged with Governance and received all material
written communications between the auditors and management; and
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·
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received the written disclosures and the letter from the independent registered public accounting
firm required by the Public Company Accounting Oversight Board regarding the independent accountant’s communications with
the Audit Committee concerning independence and has discussed with the independent registered public accounting firm its independence.
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Based on the review and
discussions referred to above, the Audit Committee recommended to the Board of Directors that the audited consolidated financial
statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011.
Stanley Kreitman
Edward T. LaGrassa
Warren O. Kogan
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee is comprised
of three non-employee directors, Mr. Kogan, Mr. Kreitman and Mr. Cavanagh. None of the members of the Compensation Committee is
or has been one of the Company’s officers or employees, and none of the Company’s executive officers served during
2011 on a board of directors of another entity which has employed any of the members of the Compensation Committee of the Board
of Directors.
COMPENSATION DISCUSSION AND ANALYSIS
General Philosophy
The Company compensates
its senior management through a mix of base salary, bonus and equity compensation designed to be competitive with comparable employers
and to align management’s incentives with the long-term interests of the Company’s stockholders. The process by which
the Company determines executive compensation consists of establishing targeted overall compensation for each senior manager and
then allocating that compensation among base salary and incentive compensation. At the senior-most levels, the Company designs
the incentive compensation to reward Company-wide performance through tying awards primarily to earnings growth. At lower levels,
the Company designs the incentive compensation to reward the achievement of specific operational goals within areas under the control
of the relevant employees, although Company-wide performance is also a factor.
Base Salaries
The Company seeks to
provide its senior management with a level of assured cash compensation in the form of base salary that facilitates an appropriate
lifestyle given their professional status and accomplishments. Members of the Compensation Committee of the Board of Directors
have strong ties to the construction industry and are familiar with the compensation paid to senior construction industry executives
in the New York City region. Using such knowledge, the Compensation Committee concluded that a base salary of $450,000 for 2011
was appropriate for the Company’s Chief Executive Officer. For 2011, the Company concluded that a base salary of $200,000
was appropriate for the Chief Operating Officer of KSW Mechanical.
Salaries of the Company’s
Chief Financial Officer and General Counsel are based on their experience and ability to support and facilitate the achievement
of company objectives. For 2011, their base salaries were $150,000 and $185,000 respectively.
Bonuses
The Company’s
practice is to award cash bonuses based upon the achievement of long term performance objectives. For the Chief Executive Officer,
his bonus for 2011, as provided by his written Employment
Agreement, is an amount equal to 9.5% of the Company’s annual profits
in excess of $100,000 before taxes and stock option expenses. The Company believes that linking his bonus to profits is in the
best interests of stockholders, since the Company’s profitability is an important factor in determining its stock price.
The bonus of the Company’s Chief Operating Officer is determined by its Chief Executive Officer and is based on how well
the Chief Operating Officer monitors and controls the Company’s operations in the field, as well as in the office. Factors
which are considered include labor productivity, identifying jobsite conditions which would benefit from increased management attention
and problem solving, and the effectiveness of the Company’s purchasing, billing and cost monitoring systems.
Bonuses paid to the
Company’s Chief Financial Officer and General Counsel are based on a review by the Chief Executive Officer of their success
in achieving the specified goals of their department, as well as their effectiveness in supporting the operations of the Company.
Equity Compensation
Historically, the primary
form of equity compensation that the Company awarded consisted of non-qualified stock options. The Company selected this form to
provide management personnel with an incentive to help maximize Company profits, which is likely to favorably influence stock price
and increase shareholder value. The 1995 Stock Option Plan expired in December 2005. Therefore, no equity compensation can be awarded
pursuant to that plan. On May 4, 2008, the Company’s shareholders ratified the adoption of the 2007 Stock Option Plan of
KSW, Inc. No equity compensation was awarded pursuant to that plan in 2011.
All Company employees,
members of the Board of Directors and consultants of the Company are eligible to participate in the 2007 Stock Option Plan. The
Compensation Committee, which administers the plan, has the sole discretion to determine when grants of options are to be made
under the plan and the number of shares, if any, to be awarded to each eligible optionee.
The aggregate number
of shares of Common Stock which may be issued under the plan with respect to options may not exceed 300,000 subject to adjustment
for certain transactions affecting the Common Stock. Lapsed, forfeited or canceled options will not count against this limit and
can be regranted under the plan. The shares issued under the plan may be issued from authorized but unissued shares. The foregoing
summary of the plan is qualified by reference to the full text of the plan, which was attached as Appendix E to the proxy statement
for the Company’s 2008 annual meeting of Stockholders.
Perquisites and
Other Benefits
The Company annually
reviews the perquisites that each member of senior management receives. The Company’s Chief Executive Officer is provided
with a company car and driver at an annual cost of approximately $97,000 to facilitate his ability to attend multiple meetings
during a work day at various construction sites and related offices throughout the New York City metropolitan area. When in the
office, the driver provides clerical services. All members of senior management participate in the Company’s medical and
401(k) plans which are available to all employees.
Board Process
The Compensation Committee
of the Company’s Board of Directors determines all compensation and equity awards to the Chief Executive Officer. The Chief
Executive Officer determines all compensation and equity awards to other officers and senior management personnel.
KSW, Inc. and KSW Mechanical
Services, Inc. employ all persons necessary for the operation of the Company’s business, and in the Company’s opinion,
its compensation policies and practices for all persons necessary for the operation of its business do not create risks that are
reasonably likely to have a material adverse effect on its business, financial position, results of operations or cash flows. The
Company’s belief is based on the fact that its employee compensation is based on performance that does not reward risky behavior
and is not tied to entering into transactions that pose undue risks to the Company.
REPORT OF THE COMPENSATION COMMITTEE ON EXECUTIVE COMPENSATION
The following report, submitted by the
Compensation Committee of the Board of Directors (the "Compensation Committee"), provides information regarding policies
and practices concerning compensation of the Chief Executive Officer and other executive officers.
The Company’s Compensation Committee
is comprised of three of the Company’s independent outside directors. The Compensation Committee sets the salary, awards
and benefits of the Chief Executive Officer, and has delegated to that officer the right to determine the salary, awards and benefits
of senior management.
The Company’s Compensation Discussion
and Analysis (“CD&A”) is set forth in the Company’s Definitive Proxy Statement pursuant to Section 14(a)
of the Securities Act of 1934. The Compensation Committee has reviewed and discussed the CD&A with management and based on
its review and discussion, recommended to the Board of
Directors that the CD&A be included
in the Company’s proxy statement.
Stanley Kreitman
John Cavanagh
Warren O. Kogan
COMPENSATION OF DIRECTORS
The Company pays its non-employee directors
an annual fee of $20,000, an attendance fee of $1,000 per Board of Directors meeting, except for the attendance at the meeting
held in conjunction with the annual meeting of stockholders, and $500 per committee meeting if not held in conjunction with a Board
of Directors meeting. The following is the Director Compensation Table for the year ended December 31, 2011:
Director Compensation Table
Name
|
Fees Earned or Paid in Cash
($)
(1)
|
Stock Awards
($)
|
Non-Equity Incentive Plan Compensation
($)
|
Change in Pension Value and Nonqualified
Deferred Compensation Earnings
|
All Other Compensation
($)
(2)
|
Total
($)
|
STANLEY KREITMAN
|
23,000
|
------
|
------
|
------
|
------
|
23,000
|
EDWARD T. LAGRASSA
|
23,000
|
|
------
|
------
|
------
|
23,000
|
JOHN A. CAVANAGH
|
23,000
|
------
|
------
|
------
|
------
|
23,000
|
WARREN O. KOGAN
|
23,000
|
------
|
------
|
------
|
------
|
23,000
|
|
(1)
|
During 2011 the Company paid its non-employee directors an annual fee of $20,000, an attendance fee of $1,000 per meeting of
the Board of Directors except for the attendance at the meeting held in conjunction with the annual meeting of stockholders, and
$500 per committee meeting if not held in conjunction with a meeting of the Board of Directors. As of March 4, 2012, the fees for
non-employee directors have not changed.
|
|
(2)
|
Amounts included above under the caption “all other compensation” represent the exercise of stock options by directors
during the year. The value realized equals the difference between the option exercise price and the fair value of the Company’s
common stock on the date of exercise, multiplied by the number of shares for which the option was exercised.
|
The following schedule details
the options outstanding for each director as of December 31, 2011.
Name
|
# of Options Outstanding
|
# of Options Exercisable
|
STANLEY KREITMAN
|
-----
|
-----
|
EDWARD T. LAGRASSA
|
20,000
|
13,333
|
JOHN A. CAVANAGH
|
7,001
|
7,001
|
WARREN O. KOGAN
|
20,000
|
20,000
|
COMPENSATION OF EXECUTIVES
Summary Compensation Table
Name and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock Awards
($)
|
Option Awards
($)
|
Non-Equity Incentive Plan Compensation ($)
|
Change in Pension Value and Nonqualified Deferred Compensation Earnings
($)
|
All Other Compensation
($)
|
Total
($)
|
|
|
|
|
|
|
(1)
|
|
(2)
|
|
FLOYD WARKOL
Chairman of the Board, Chief Executive Officer, President and Secretary
|
2011
2010
2009
|
450,000
450,000
450,000
|
--------
--------
|
--------
|
--------
|
271,949
365,592
194,239
|
--------
|
143,689
(3)
157,907
(4)
96,923
(5)
|
865,638
973,499
741,162
|
RICHARD W. LUCAS
Chief Financial Officer
|
2011
2010
2009
|
150,000
150,000
150,000
|
30,000
20,000
40,000
|
--------
--------
|
--------
--------
|
--------
--------
|
--------
--------
|
4,125
4,125
4,125
|
184,125
174,125
194,125
|
VINCENT TERRAFERMA
Chief Operating Officer at KSW Mechanical
|
2011
2010
2009
|
200,000
200,000
200,000
|
100,000
80,000
50,000
|
--------
--------
|
--------
--------
|
--------
--------
|
--------
--------
|
5,500
5,500
5,125
|
305,500
285,500
255,125
|
JAMES F. OLIVIERO
General Counsel
|
2011
2010
2009
|
185,000
185,000
185,000
|
40,000
25,000
50,000
|
--------
--------
|
--------
--------
|
--------
--------
|
--------
--------
|
5,000
5,000
5,000
|
230,000
215,000
240,000
|
|
(1)
|
Amounts consist of the bonus earned by Mr. Warkol pursuant
to his employment agreement.
|
|
(2)
|
Unless otherwise indicated, the amounts in this column
consist of 401K matching contributions made by the Company.
|
|
(3)
|
This amount consists of approximately (a) $13,685 relating to an insurance policy (b) $23,165 related
to the personal portion of expenses for the use of a car and a driver, (c) $5,500 401(k) matching contribution made by the Company
and (d) $101,339 of dividend distributions pursuant to the Company’s previously disclosed dividend on $.15 per share dividend.
|
|
(4)
|
This amount consists of approximately (a) $13,685 relating to an insurance policy (b) $23,872 related
to the personal portion of expenses for the use of a car and a driver, (c) $5,500 401(k) matching contribution made by the Company
and (d) $114,850 of dividend distributions pursuant to the Company’s previously disclosed dividends on $.10 and $.07 per
share dividends.
|
|
(5)
|
This amount consists of approximately (a) $67,139 of dividend distribution pursuant to the Company’s
previously disclosed $.10 per share dividend, (b) $0 relating to an insurance policy, (c) $24,284 related to the personal portion
of expenses for the use of a car and driver and (d) a $5,500 401(k) matching contribution made by the Company.
|
EMPLOYMENT AGREEMENTS
On September 12, 2006, the Company, KSW
Mechanical and Floyd Warkol, the Chairman and Chief Executive Officer of the Company, entered into an employment agreement (the
“Employment Agreement”), effective as of January 1, 2006. On March 6, 2007, the Compensation Committee of the Board
of Directors agreed to extend the Employment Agreement for two years, so as to expire on December 31, 2009, on the same terms and
conditions.
On November 12, 2009, the Compensation
Committee of the Board of Directors of the Company and Floyd Warkol agreed to extend Mr. Warkol’s Employment Agreement, dated
as of January 1, 2006, for an additional two years. Effective January 1, 2012, the Compensation Committee and Floyd Warkol again
agreed to extend the Employment Agreement until December 31, 2013. Mr. Warkol continued to be employed as Chief Executive Officer
of the Company and KSW Mechanical until December 31, 2011, under the same terms and conditions as the Employment Agreement, except
that Mr. Warkol’s bonus was computed on annual pre-tax profits which are in excess of $100,000, rather than in excess of
$250,000. Effective January 1, 2012, Mr. Warkol’s Employment Agreement, as amended, was extended until December 31, 2013
under the same terms and conditions.
Under the Employment Agreement, Mr. Warkol
is also entitled to medical insurance, disability insurance with payments up to 60% of his base compensation, a $1 million policy
of life insurance payable as directed by him (at a cost of approximately $13,685 per year) and a car with a driver (at a cost of
approximately $97,000 per year, of which $23,165 relates to the personal portion of this expense).
The Employment Agreement may be terminated
by the Company for “cause”, which includes Mr. Warkol’s willful and continued failure to perform his duties,
fraud or embezzlement, conviction of a felony and the inability of Mr. Warkol to perform his duties. Mr. Warkol may terminate the
Employment Agreement upon the sale of the Company or substantially all of its assets.
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
Outstanding Equity Awards at Fiscal Year-End
Table
|
Option Awards
|
Stock Awards
|
Name
|
Number of Securities Underlying Unexercised
Options
(#)
Exercisable
|
Number of Securities Underlying Unexercised
Options
(#)
Unexercisable
|
Equity Incentive Plan Awards: Number
of Securities Underlying Unexercised Unearned Options
(#)
|
Option Exercise Price
($)
|
Option Expiration Date
|
Number of Shares or Units of Stock That
Have Not Vested
(#)
|
Market Value of Shares or Units of Stock
That Have Not Vested
($)
|
Equity Incentive Plan Awards: Number
of Unearned Shares, Units or Other Rights That Have Not Vested
(#)
|
Equity Incentive Plan Awards: Market
or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested
($)
|
FLOYD WARKOL
|
2011
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
RICHARD W. LUCAS
|
2011
|
7,000
|
-------
|
-------
|
1.58
|
08/08/15
|
-------
|
-------
|
-------
|
-------
|
VINCENT TERRAFERMA
|
2011
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
JAMES F. OLIVIERO
|
2011
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
-------
|
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth information
as of December 31, 2011 regarding shares of Common Stock to be issued upon exercise and the weighted-average exercise price of
all outstanding options, warrants and rights granted under the Company’s equity compensation plans as well as the number
of shares available for issuance under such plans. The 1995 Stock Option Plan expired in December 2005. On May 4, 2008, the Company’s
shareholders ratified the adoption of the 2007 Stock Option Plan of KSW, Inc.
1995 STOCK OPTION PLAN
|
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights
|
|
|
Weighted-average exercise price of outstanding options, warrants and rights
|
|
|
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))
|
|
Plan Category
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans approved by security holders
|
|
|
14,001
|
|
|
$
|
1.58
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans not approved by security holders
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Total
|
|
|
14,001
|
|
|
|
|
|
|
|
0
|
|
2007 STOCK OPTION PLAN
|
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights
|
|
|
Weighted-average exercise price of outstanding options, warrants and rights
|
|
|
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))
|
|
Plan Category
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans submitted for approval by security holders
|
|
|
40,000
|
|
|
$
|
4.78
|
|
|
|
260,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans not approved by security holders
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
40,000
|
|
|
|
|
|
|
|
260,000
|
|
OPTION EXERCISES AND STOCK VESTED DURING 2011
Option Exercises and Stock Vested Table
Option Awards
|
Stock
Awards
|
Name
|
Number of Shares Acquired on
Exercise
(#)
|
Value Realized on Exercise
($)
(1)
|
Number of Shares Acquired on
Vesting
(#)
|
Value Realized on Vesting
($)
|
FLOYD WARKOL
|
-------
|
------
|
------
|
------
|
RICHARD W. LUCAS
|
-------
|
------
|
------
|
------
|
VINCENT TERRAFERMA
|
-------
|
-------
|
------
|
------
|
JAMES F. OLIVIERO
|
-------
|
-------
|
------
|
------
|
|
(1)
|
The value realized equals the difference between the option exercise price and the fair value of the Company’s common
stock on the date of exercise, multiplied by the number of shares for which the option was exercised.
|
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE
Section
16(a) of the Exchange Act requires the Company’s executive officers and directors, and persons who own more than 10% of a
registered class of the Company’s equity securities to file reports of initial ownership and changes in ownership with the
SEC. Executive officers and directors and greater than 10% beneficial owners are required by SEC regulations to furnish the Company
with copies of all Section 16(a) forms they file. Based solely on review of the copies of such forms furnished to the Company,
or
written representations from certain
reporting
persons that no Forms 5 were required, the Company believes that during the year ended December 31, 2011, its executive officers,
directors and stockholders of more than 10% of the Company complied with all applicable Section 16(a) filings requirements.
PERFORMANCE GRAPH
The following graph compares the cumulative
total returns for the Company’s Common Stock for the five-year period ending December 31, 2011 with the NASDAQ Market Index
and an index of all publicly traded companies in the Plumbing, Heating and Air Conditioning industry (SIC Code 1711) (the “Peer
Index”) for the same period. Total return equals the change in stock price, plus dividends paid, and assume the investment
of $100 in the Company’s Common Stock and in each index on December 31, 2006 and that all dividends are reinvested. The information
has been obtained from sources believed to be reliable, but neither its accuracy nor its completeness is guaranteed. The performance
graph is not necessarily indicative of future investment performance.
Source: Core
Data, Inc.
PROPOSAL NO. 2
RATIFICATION OF APPOINTMENT OF INDEPENDENT
AUDITORS
On September 1, 2009, the Board of Directors
of the Company approved the recommendation of the Company’s Audit Committee that the firm of BDO Seidman, LLP, now known
as BDO USA, LLP, (“BDO”) be appointed as the Company’s independent auditors effective as of September 1, 2009.
The Audit Committee has selected BDO, certified
public accountants, as the Company's independent registered public accounting firm, for the fiscal year ending December 31, 2012,
subject to ratification of such appointment by the stockholders. In the event of a negative vote on ratification, the Audit Committee
will reconsider its selection.
During the years ended December 31, 2011
and 2010, neither the Company nor anyone on its behalf consulted with BDO regarding any of the matters or events set forth in Item
304(a)(2)(i) and (ii) of Regulation S-K.
During the years ended 2011 and 2010, none
of the independent auditors’ reports on the Company’s financial statements contained an adverse opinion or disclaimer
of opinion, or was qualified or modified as to uncertainty, audit scope or accounting principles.
FEES BILLED BY INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
During 2011, BDO billed the Company $143,000
for professional services rendered.
The following table sets forth the aggregate
fees billed by BDO for professional services in each of the fiscal years ended December 31, 2011 and 2010.
Year ended December 31, 2011
|
|
|
|
|
BDO
|
|
Audit fees
|
|
|
(1)
|
|
$
|
129,000
|
|
Tax fees
|
|
|
(2)
|
|
|
14,000
|
|
All other fees
|
|
|
(3)
|
|
|
-
|
|
Total
|
|
|
|
|
|
$
|
143,000
|
|
Year ended December 31, 2010
|
|
|
|
|
BDO
|
|
Audit fees
|
|
|
(1)
|
|
$
|
115,000
|
|
Tax fees
|
|
|
(2)
|
|
|
13,000
|
|
All other fees
|
|
|
(3)
|
|
|
-
|
|
Total
|
|
|
|
|
|
$
|
128,000
|
|
|
(1)
|
Audit fees consisted principally of audit work performed on the consolidated financial statements,
as well as work that only the independent auditors can reasonably be expected to provide including the review of the Company’s
quarterly consolidated financial statements.
|
|
(2)
|
Tax fees consisted of tax compliance and reporting services.
|
|
(3)
|
The Company generally does not engage its independent auditors for “other” services.
|
The Audit Committee of the Company’s
Board of Directors considered whether the provision of non-audit services by the independent public accountants was compatible
with maintaining the accountants’ independence, and they determined that it was.
The Audit Committee has a policy requiring
pre-approval of audit and non-audit services. The Audit Committee of the Company’s Board of Directors considers each engagement
of the independent auditors on a case-by-case basis. In determining engagements to be performed by independent auditors, the Audit
Committee determines whether the services would impair the independence of the auditors and whether the services are in the best
interest of the Company. The Audit Committee approved all audit and non-audit services provided by and BDO during the fiscal year
ended December 31, 2011.
It is expected that a representative of
BDO will be present at the Annual Meeting with the opportunity to make a statement if such representative so desires and to respond
to appropriate questions.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS
A VOTE "FOR" THE RATIFICATION OF THE APPOINTMENT OF BDO USA, LLP AS THE COMPANY'S INDEPENDENT AUDITORS FOR THE FISCAL
YEAR ENDING DECEMBER 31, 2012.
STOCKHOLDER
PROPOSAL (ITEM NO. 4 ON PROXY CARD)
Furlong Financial, LLC, 10 G Street NE,
Suite 710, Washington, DC 20002, the beneficial owner of 4,500 shares of Common Stock, has advised us that it intends to submit
the following proposal at the meeting. In accordance with federal securities regulations, we have included the text of the stockholder
proposal and supporting statement exactly as submitted by the proposing stockholder (the “Proponent”). The Company
is not responsible for the content of the stockholder proposal or the supporting statement. The Board of Directors has recommended
a vote AGAINST the proposal for the reasons set forth below.
Stockholder Proposal
RESOLVED, pursuant to By-Law 39 of the
Amended and Restated By-Laws (the "By-Laws") of KSW, Inc. ("KSW" or the "Company"), stockholders
hereby amend the By-Laws to add By-Law 41 PROXY ACCESS:
''The Company
shall include in its proxy materials for a meeting of stockholders the name, together with the Disclosure and Statement (both as
defined in this By-Law 41), of any person nominated for election to the Board of Directors by a stockholder or group thereof (the
"Nominator"), and allow stockholders to vote with respect to such nominee on the Company's proxy card. Each Nominator
may nominate one candidate for election at a meeting.
To be eligible to make a nomination, a Nominator must:
(a)
have beneficially owned 2% or more of the Company's outstanding common stock (the "Required Shares") continuously for
at least one year;
(b)
provide written notice received by the Company's Secretary within the time period specified for shareholder proposals under
Rule 14a-18 of
the
Securities and Exchange Act of 1934, as
amended or any successor provision thereto, containing
(1) with respect to the nominee, (A) the information required by these
By-Laws and (B) such nominee's consent to being named in the proxy statement and to serving as a director
if
elected; and (2) with respect to the Nominator, proof of ownership of the Required Shares (the information referred to in
clauses (a) and (b) above being referred to as the "Disclosure"); and
(c) execute
an undertaking that the Nominator agrees to (1) assume all liability of any violation of law or regulation arising out of the Nominator's
communications with stockholders, including the Disclosure and (2) to the extent it uses soliciting material other than the Company's
proxy materials, comply with all applicable laws and regulations.
The Nominator
shall have the option to furnish a statement, not to exceed 500 words, in support of the nominee's candidacy (the "Statement"),
at the time the Disclosure is submitted to the Company's Secretary. The Board of Directors shall adopt a procedure for timely resolving
disputes over whether notice of a nomination was timely given and whether the Disclosure and Statement comply with this By-Law
41 and any applicable SEC rules."
Stockholder’s Supporting Statement
The
proposed amendment will give shareholders a more effective means of exercising their fundamental right to nominate directors. It
merely gives a voice to the shareholders of KSW.
If
the shareholders
are happy with the current directors, they can vote for the incumbents. In that case, the board structure will not change. This
proposal is only about giving shareholders the option to nominate a director without incurring significant costs. KSW has the chance
to be one of a few companies that offers its shareholders proxy access. Voting for this amendment will be a very important step
towards improving the corporate governance landscape.
We urge you to vote for this proposal.
Board of Director’s Statement in
Opposition to Stockholder Proposal
The Board of Directors is committed to
ensuring effective corporate governance, and accordingly, the Board of Directors periodically evaluates the Company’s governing
documents to determine if any changes are advisable. After receipt of the proposal from the Proponent, the Board of Directors,
in consultation with legal counsel, reviewed the stockholder nomination provisions in the Company’s By-Laws. At a meeting
held on January 5, 2012, the Board of Directors, recognizing the value of permitting the Company’s stockholders who own a
significant amount of the Company’s common stock to nominate directors, adopted a resolution to amend the existing By-Law
13(b), to permit nominations of directors to the Board of Directors by stockholders who have beneficially owned 5% of the Company’s
outstanding Common Stock continuously for at least a year. In addition, on January 27, 2012, the Board of Directors adopted a further
amendment to By-Law 13 to (1) make clear that a nominating stockholder who meets the criteria and follows the procedures set forth
in By-Law 13 will have the ability to access the Company’s proxy materials and (2) provide for a nominating stockholder to
include a statement of support for his or her nominee in the proxy materials.
In evaluating the ownership threshold to
be required for stockholder nominations, the Board of Directors took into account the market capitalization of the Company. Based
on the January 6, 2012 closing price of the Company’s Common Stock on the NASDAQ Stock Market of $3.25 per share, the Proponent’s
proposed ownership threshold of 2% would allow each stockholder owning shares valued as low as $415,000 to nominate a director
at each annual stockholder meeting. As a result, the Board determined that a 2% ownership threshold was too low and that a higher
ownership threshold of 5% would allow stockholders who have a meaningful ownership interest in the Company to exercise their right
to nominate directors to the Board.
THE BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “AGAINST” THE STOCKHOLDER PROPOSAL (ITEM NO. 4 ON THE PROXY CARD).
OTHER
MATTERS
As of the date of this proxy statement,
the Company knows of no other matter to be submitted at the meeting. If any other matters properly come before the meeting, it
is the intention of the persons named in the enclosed proxy to vote the shares represented by the proxy on such matters in accordance
with their judgment.
STOCKHOLDER PROPOSALS FOR 2012 ANNUAL
MEETING
Stockholder proposals to be presented at
the 2013 annual meeting must be received by the Company on or before December 13, 2012
to be included in the proxy statement
and proxy card relating to the 2013 annual meeting pursuant to SEC Rule 14a-8. Any such proposals should be sent via registered,
certified or express mail to: Director of Investor Relations, KSW, Inc., 37-16 23
rd
Street, Long Island City, New York
11101.
As a separate and distinct matter from
proposals under Rule 14a-8, the Company’s By-Laws provide that in order for business to be properly brought before the next
annual meeting by a stockholder, such stockholder must deliver timely notice thereof. To be timely, a stockholder intending to
introduce a proposal at an annual meeting must notify the Company of such intention not less than 60 days prior to the date of
the annual meeting. If the Company has given less than 75 days public notice of the date of the annual meeting, the stockholder
must give such notice so that it is received by the Company not later than 10 days after the public notice is given or the proxy
statement is mailed. The stockholder's notice must give the information specified in the By-Laws, including information about the
stockholder making the proposal, the number of shares such stockholder owns and any interest such stockholder may have in the subject
of the proposal. If such stockholder will be nominating persons for election as directors, certain information specified in the
By-Laws must also be given about the nominee and the nominee's interest in the Company.
Dated: March 30, 2012
|
By order of the Board
of Directors
James F. Oliviero
General Counsel
|
Please remember to mark, sign, date and return the enclosed
proxy card in the enclosed postage-paid envelope so that your important vote will be counted at the Annual Meeting.
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