Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. 1 )
Exchange Act of 1934 (Amendment No. 1 )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Filed by a Party other than the Registrant o
Check the appropriate box:
| þ | Preliminary Proxy Statement | |
| o | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | |
| o | Definitive Proxy Statement | |
| o | Definitive Additional Materials | |
| o | Soliciting Material Pursuant to §240.14a-12 |
First Albany Companies Inc.
Payment of Filing Fee (Check the appropriate box):
| þ | No fee required. | |
| o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
| (1) | Title of each class of securities to which transaction applies: | ||
| (2) | Aggregate number of securities to which transaction applies: | ||
| (3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | ||
| (4) | Proposed maximum aggregate value of transaction: | ||
| (5) | Total fee paid: | ||
| o | Fee paid previously with preliminary materials. | |
| o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
| (1) | Amount Previously Paid: | ||
| (2) | Form, Schedule or Registration Statement No.: | ||
| (3) | Filing Party: | ||
| (4) | Date Filed: | ||
Table of Contents
October
[ ], 2007
Dear Shareholder:
We will hold a special meeting of the shareholders of First
Albany Companies Inc. (the “Company”) at
[ ]5
on
[ ],
5at 10:00 a.m. (EDT).
The enclosed material includes the Notice of Special Meeting and
Proxy Statement that describes the business to be transacted at
the meeting, for the following purposes:
(1) To consider and act upon a proposal to amend the
Company’s Amended and Restated Certificate of Incorporation
(the “Certificate of Incorporation”) to change the
name of the Company to Broadpoint Securities Group, Inc.;
(2) To consider and act upon a proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written
consent; and
(3) To transact such other business as may properly come
before the meeting or any adjournment thereof.
We ask that you give it your careful attention.
The First Albany Companies Inc. Board of Directors (the
“Board”) unanimously recommends that the shareholders
vote (1) “FOR” a proposal to amend the
Company’s Certificate of Incorporation to change the name
of the Company to Broadpoint Securities Group, Inc. and
(2) “FOR” a proposal to amend the Company’s
Certificate of Incorporation to permit the shareholders to act
by less than unanimous written consent.
We hope that you are planning to attend the special meeting
personally and we look forward to seeing you. Whether or not you
are able to attend in person, it is important that your shares
be represented at the special meeting. Accordingly, the return
of the enclosed proxy as soon as possible will be appreciated
and will ensure that your shares are represented at the special
meeting. In addition to using the traditional proxy card, most
shareholders also have the choice of voting over the Internet or
by telephone. If you do attend the special meeting, you may, of
course, withdraw your proxy should you wish to vote in person.
On behalf of the Board 5and management of First Albany Companies
Inc., I would like to thank you for your continued support and
confidence.
Sincerely yours,
Lee Fensterstock5
Chairman of the Board and Chief Executive Officer
Chairman of the Board and Chief Executive Officer
Table of Contents
NOTICE OF SPECIAL MEETING OF
SHAREHOLDERS
TO BE HELD [ ], 2007
TO BE HELD [ ], 2007
NOTICE IS HEREBY GIVEN that the special meeting of the
shareholders of First Albany Companies Inc. 5will be held at
[ ]5
on
[ ],
5at 10:00 a.m. (EDT), for the following purposes:
(1) To consider and act upon a proposal to amend the
Company’s Certificate of Incorporation to change the name
of the Company to Broadpoint Securities Group, Inc.;
(2) To consider and act upon a proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written
consent; and
(3) To transact such other business as may properly come
before the meeting or any adjournment thereof.
The First Albany Companies Inc. Board 5unanimously recommends
that the shareholders vote (1) “FOR” a proposal
to amend the Company’s Certificate of Incorporation to
change the name of the Company to Broadpoint Securities Group,
Inc. and (2) “FOR” a proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written consent.
Holders of common stock of record as of the close of business on
October 15,5 2007 are entitled to receive notice of and vote
at the special meeting of the shareholders. A list of such
shareholders may be examined at the special meeting.
It is important that your shares be represented at the special
meeting. For that reason we ask that you promptly sign, date,
and mail the enclosed proxy card in the return envelope
provided. You may also have the option of voting over the
Internet or by telephone. Please refer to your proxy materials
or the information forwarded by your bank, broker or other
holder of record to see which voting methods are available to
you. Shareholders who attend the special meeting may withdraw
their proxies and vote in person.
By Order of the Board of Directors
Lee Fensterstock
Chairman5 and Chief Executive Officer
Chairman5 and Chief Executive Officer
New York5, New York
October [ ], 2007
Table of
Contents
| Page No. | ||||
| 15 | ||||
| 25 | ||||
| 35 | ||||
| 55 | ||||
| 65 | ||||
| 75 | ||||
| 75 | ||||
| 75 | ||||
|
Appendix A 5— Amendment to the Certificate of
Incorporation
|
||||
|
Appendix B —
Voting Agreement
|
||||
|
Appendix C 5—
License Agreement
|
||||
Table of Contents
One Penn
Plaza5, 42nd Floor
New York, New York 101195
New York, New York 101195
PROXY STATEMENT
[ ]5,
20075
This 5proxy statement 5is being furnished5 5to 5the shareholders5
5of5
5First Albany Companies5 Inc. 5in 5connection with5 5the solicitation
5
5by5 5the 5Board 5of proxies5 for use5
5at the special meeting 5to 5be5
5held 5at
[ ]5
5on
[ ]5
5at 105:00 a.m5. 5(EDT5
)5, 5and 5any postponements or adjournments
thereof5.5 The mailing address5 of 5the principal
office5 of 5the
Company is One Penn Plaza5, 42nd Floor5, New York5, New York
101195 5and its telephone number5 is
(212) 273-7100.5
Unless the context otherwise requires, references to
“we,” “our” and “us” in this
document refer to First Albany Companies Inc. and its
subsidiaries.
At the special meeting, the shareholders of the Company will be
asked (1) to consider and act upon the proposal to amend
the Company’s Certificate of Incorporation to change the
name of the Company to Broadpoint Securities Group, Inc. and
(2) to consider and act upon the proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written consent.
Proxy
Solicitation
This proxy statement and the enclosed form of proxy are expected
to be mailed on or about
October [ ],
2007. All expenses of the Company in connection with this
solicitation of proxies will be borne by the Company. Proxies
may be solicited by directors, officers and other employees of
the Company in person or by mail, telephone, facsimile or
e-mail,
without additional compensation. The Company 5will also request
brokerage firms, nominees, custodians and fiduciaries to forward
proxy materials to the beneficial owners of shares held of
record by such persons and will reimburse such persons and the
Company’s transfer agent for their reasonable out-of-pocket
expenses in forwarding such materials but these individuals will
receive no additional compensation for these solicitation
services.
Voting by
Mail, Internet or Telephone
Shareholders who cannot attend the special meeting in person can
be represented by proxy. Most shareholders have a choice of
voting over the Internet, using a toll-free telephone number or
completing the proxy card in the form enclosed and mailing it in
the envelope provided. Please refer to your proxy card or the
information forwarded by your bank, broker or other nominee to
see which options are available to you.
A proxy may be revoked at any time before it is exercised by
giving notice of revocation to the Secretary of the Company, by
executing a later-dated proxy (including an Internet or
telephone vote) or by attending and voting in person at the
special meeting. The execution of a proxy will not affect a
shareholder’s right to attend the special meeting and vote
in person, but attendance at the special meeting will not, by
itself, revoke a proxy. Proxies properly completed and received
prior to the special meeting and not revoked will be voted at
the special meeting.
Shareholder
Proposals for Next Year’s Annual Meeting
The deadline for submitting a shareholder proposal for inclusion
in our proxy statement and form of proxy for the 2008 annual
meeting of shareholders is no earlier than 90 days before
the 2008 annual meeting, and no later than
Table of Contents
the close of business on the later of either (i) the
seventieth (70) day prior to the 2008 annual meeting, or
(ii) the tenth day following the day the 2008 annual
meeting date was first publicly announced. Shareholders are
advised to review our Bylaws, which contain additional
requirements with respect to advance notice of shareholder
proposals and director nominations. Our current Bylaws are
available at the SEC’s website, www.sec.gov, or upon
written request to Investor Relations, First Albany Companies
Inc., One Penn Plaza, 42nd Floor, New York, New York 10119.
The proposed amendments to our Certificate of Incorporation
referred to in the proposals is appended to this proxy statement
as Appendix A and will also be available at
www.sec.gov or upon written request to our Investor
Relations department following adoption.
Proxies will be voted as specified or, if no direction is
indicated on a proxy, will be voted
(1) “For” the proposal to amend the
Company’s Certificate of Incorporation to change the name
of the Company to Broadpoint Securities Group, Inc. and
(2) “For” the proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written consent.
The persons named in the proxy also may vote in favor of a
proposal to adjourn the special meeting to a subsequent date or
dates without further notice in order to solicit and obtain
sufficient votes to approve the matters being considered at the
special meeting. If a proxy is returned which specifies a vote
against a proposal, such discretionary authority will not be
used to adjourn the special meeting in order to solicit
additional votes in favor of such proposal. As to any other
matter or business which may be brought before the special
meeting, including any adjournment(s) or postponement(s)
thereof, a vote may be cast pursuant to the proxy in accordance
with the judgment of the person or persons voting the same. As
of the date hereof, the Board does not know of any such other
matter or business.
The close of business on October 15,5 2007 has been fixed as
the record date for the determination of shareholders entitled
to vote at the special
meeting. shares
of common stock were outstanding as of the record date. Each
shareholder will be entitled to cast one vote, in person or by
proxy, for each share of common stock held. There are no other
shares of voting stock of the Company outstanding. The presence,
in person or by proxy, of the holders of at least a majority of
the shares of common stock entitled to vote at the special
meeting is necessary to constitute a quorum at the special
meeting. Abstentions and broker non-votes (as described below)
and votes to “withhold authority” are counted in
determining whether a quorum has been reached on a particular
matter. Votes to withhold authority are treated the same as
abstentions for purposes of the voting requirements described
below.
If you hold your shares in “street name” through a
broker or other nominee, your broker or nominee may not be
permitted to exercise voting discretion with respect to certain
matters. Thus, if you do not give your broker or nominee
specific instructions, your shares may not be voted on those
matters and will not be counted in determining the number of
shares necessary for approval. Your broker will not be
permitted to exercise voting discretion with respect to
Proposal 1 or Proposal 2.
You can cast one vote for each share of First Albany common
stock you own. The proposals require the following percentages
of votes in order to approve them:
| • | To be approved, Proposal 1 must receive “For” votes from the holders of a majority of the shares outstanding as of the record date. If you abstain from voting, it will have the same effect as an “Against” vote. Broker non-votes will also have the same effect as an “Against” vote. | |
| • | To be approved, Proposal 2 must receive “For” votes from the holders of a majority of the shares outstanding as of the record date. If you abstain from voting, it will have the same effect as an “Against” vote. Broker non-votes will also have the same effect as an “Against” vote. |
The Board unanimously recommends that the shareholders vote
(1) “For” the proposal to amend the
Company’s Certificate of Incorporation to change the name
of the Company to Broadpoint Securities Group, Inc. and
(2) “For” the proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written consent.
2
Table of Contents
TO AMEND THE COMPANY’S CERTIFICATE OF INCORPORATION
TO
CHANGE THE NAME OF THE COMPANY TO BROADPOINT SECURITIES
GROUP, INC.
On March 6, 2007, the Company and First Albany Capital
Inc5.5, 5the Company’s wholly-owned subsidiary5,
entered into
an asset purchase agreement (5the 5“5Asset Purchase
Agreement”) with5 5DEPFA Bank plc5, an Irish public limited5
Company5, with its New York Branch at 623 Fifth Avenue5,
22nd Floor5, New York5, New York 10022 (“5DEPFA
”)5.
Pursuant5 to the Asset Purchase Agreement, DEPFA agreed to5
purchase the Company5’s Municipal Capital Markets Group (5the
“MCMG”5)5, including5 the right to use the name
“First Albany” and any derivative thereof except for
certain exceptions, for $12,000,000 in cash and further agreed
to5 5purchase 5the MCMG5’s municipal
5 bond 5inventory at 5closing
which was approximately $48,000,000 (the “DEPFA
Transaction5”).
On September 14, 2007,5 the sale of5 the MCMG and its
municipal bond inventory 5to DEPFA was completed5. Upon5 the
closing5, 5the Company entered5 into 5a license agreement
5 with
DEPFA5, dated5 as 5of September 14, 2007 (the
“License5
Agreement”5)5, to 5allow 5the Company 5to operate under a trade
name but continue5 5to use the name “5First Albany
”5 in
5the Company’s official corporate name5 and 5in any5 other
context where use5 of 5the Company’s official corporate name5
is required5 by applicable law5. In accordance with5 the
terms5 of
5the License Agreement5, we agreed to present for shareholder5
approval at a special meeting an amendment to our Certificate of
Incorporation changing our corporate5 name to a name that does
not include the words5 “First Albany” or5 “FA5”
or any derivatives5 thereof 5(the “Charter Amendment5”)5.
If5 the Charter Amendment5 is 5not effected within sixty days
following5 the closing 5of 5the 5DEPFA Transaction,5 or
November 13,5 2007, then5 5in accordance5 with 5the
License5
Agreement, we5 5will pay DEPFA an annual royalty fee5 of $50,000
within ten business days5 of such date5 and thereafter on each
anniversary5 of such date until5 the License5 Agreement
terminates5
in accordance5 5with its terms5. A more complete summary5
of 5the
License Agreement is set forth below5, 5and 5a more detailed
description5 of completion5 5of the DEPFA Transaction can be found5
in our Current Report5 5on From
85-K filed
with5 the SEC on September 20, 2007.5
On September 21, 2007, the Company completed5 the previously
announced private placement transaction5 (the Private
Placement5”) with an affiliate5 5of MatlinPatterson Global
Opportunities Partners II5 (5“MatlinPatterson5”)5.
MatlinPatterson purchased 37,909,383 newly5-issued shares5 5of the
Company5’s common5 stock5 5for 5a5 5purchase
price5 of $49,420,000.5
The 37,909,383 shares5 5of common stock represent
approximately 69.74%5 of the issued5 and outstanding voting
power5
5of 5the Company. The number5 of shares issued5 to
MatlinPatterson
is subject5 to upward adjustment within 60 days5 of the
closing5 of the Private Placement based5 on 5the final calculation5
5of the Company5’s net tangible book value per share5. In
connection5 with 5the closing5,5 5the Company
announced5 5the launch5 of5
5its new corporate brand5, Broadpoint5. We believe5
the new
Broadpoint name reinforces5 the Company5’s broad experience5
in strategic advisory services5, debt5 and equity capital
raising5,
5and secondary debt5 and equity sales5 5and trading,
5 and reflects5
the execution orientation5 of the firm5, which is facilitated5 by
5its industry expertise5, structure5 and focus5
.. A more detailed
description of the completion of the Private Placement5 can be
found in our Current Report on
Form 8-K
filed with the SEC on September 27,5 2007.
Accordingly5, 5the Board 5is proposing5 that Article FIRST5
5of
5our Certificate of Incorporation 5be amended5 5to change the
name5
of the Company. The full text5 5of Article FIRST5 of the
5Certificate of Incorporation5, 5as proposed to be amended5,
will
read as follows:5
“FIRST, The name of the Corporation shall5 be Broadpoint
Securities Group5, Inc5.5, and5 the
name under which it was formed
was5 First Albany Companies Inc5.5”
The proposed Certificate5 of Amendment5 to 5the Certificate5
of
Incorporation5 is attached to this proxy statement as
Appendix A55.
Voting
Agreement5
DEPFA entered into a voting agreement5 with 5MatlinPatterson
effective5 5as5 5of June 29,5 2007
(5the “Voting5
Agreement”). Pursuant5 5to 5the Voting Agreement5
,
MatlinPatterson has agreed to vote5 its5 5shares of 5common stock 5in
favor5 5of the amendment5 to 5the Company5’s
Certificate5 of
Incorporation5 to 5change 5the name5 5of the Company 5at
every meeting5
5of 5the shareholders5 5of 5the Company at5 5
which such matter5 is
considered5 5and 5at every adjournment thereof5,
3
Table of Contents
5and 5not 5to solicit5, encourage5 or
recommend5 to 5other shareholders5
5of the Company5 that they vote their shares5 5of
common stock5 in
any contrary manner5 5or they not5 vote their shares5 5of
common
stock at all5.
As5 5of the record5 date 5for 5the
special meeting5, MatlinPatterson5
5is 5the5 5shareholder5 5of record5 of approximately
69.74%5 5of the
issued5 and outstanding common stock entitled5 to vote at the
special meeting5, 5and in accordance with5 the Voting5
Agreement5,
MatlinPatterson5 will vote5 its shares in favor5 of 5
the amendment5
to 5the Certificate5 of Incorporation changing the name 5of 5the
Company 5to Broadpoint Securities Group5, Inc5. 5and5 5it 5
will be
approved5.
This summary5 5of 5the provisions5 of 5the
Voting5 Agreement is
qualified5 in 5its entirety5 by 5the full text
5 of 5the Voting5
Agreement
included5 in Appendix B and incorporated5 by
reference herein.5
License
Agreement
Pursuant5 to 5the License Agreement5, DEPFA has granted5
the Company
a non-exclusive5, 5non-transferable5, 5
non-sublicensable license
(5the “License”)5 under 5DEPFA’s rights5
in5 5and5 5to
the common5 law trademark “5First Albany” (5the
“Mark”)5. The License5 Agreement allows5 the
Company5 to
use the Mark in5 the Company’s official corporate name and5
5in 5any 5other context where (a) use5 of5 5the Company5’s
official corporate name5 5is required 5by5 5applicable law,
including
without limitation5 its certificate of incorporation5, 5by-laws5
5and
5regulatory 5and other5 governmental filings5, 5and
(b) 5the5
5Company 5in the ordinary conduct5 of its business must5
5use 5the
Mark5 in order to identify itself5, including without limitation5
in correspondence5 5and 5contracts5. The Company5 5has agreed
5that it5
will not take5 any action materially inconsistent with5 the
reputation5 for high quality symbolized5 5by 5the
Mark5. 5The Company5
5has also agreed to use commercially reasonable efforts5 5to effect
5
the Charter Amendment within sixty days following5 5the Closing5 of
the 5DEPFA transaction5, or November 13, 2007,5 and thereafter
until5 the Charter Amendment is effected5. If5 the
Charter
Amendment is5 not effected5 by November 13,5 5
2007, then5 5in
consideration5 for 5the License5, 5the Company shall
pay5 DEPFA an
annual royalty fee5 of $50,000 within ten5 business 5days 5of such5
5date 5and thereafter5 on each anniversary5 of such5 5date 5
until the
License5 Agreement terminates in accordance with its terms5.
This 5summary of the provisions of the License5 Agreement is
qualified in its entirety by the full text of the License5
Agreement included in
Appendix C5 and incorporated by
reference herein.
No
Appraisal Rights
The shareholders are not entitled to appraisal rights with
respect to Proposal 1,5 and we will not independently
provide the shareholders with any such rights.
Required
Vote
Required Approval. The affirmative vote of the
holders of a majority of the shares outstanding as of the record
date is required for the approval of the amendment to the
Certificate of Incorporation to change the name of the Company
to Broadpoint Securities Group, Inc. The Board has unanimously
voted in favor of the proposed amendment.
The Board unanimously recommends that the Company’s
shareholders vote “For” the proposal to amend the
Company’s Certificate of Incorporation to change the name
of the Company to Broadpoint Securities Group, Inc.
4
Table of Contents
TO AMEND
THE COMPANY’S CERTIFICATE OF INCORPORATION TO PERMIT
THE
SHAREHOLDERS TO ACT BY LESS THAN UNANIMOUS WRITTEN
CONSENT
The Board has unanimously approved and recommends to the
shareholders that they consider and approve a proposal to amend
the Company’s Certificate of Incorporation to permit our
shareholders to take action by written consent where we have
obtained the written consent of not less than the minimum number
of votes that would be necessary to authorize the action at a
meeting where all shares entitled to vote are present and voted,
as permitted by Section 615 of the New York Business
Corporation Law (the “NYBCL”). If the proposed
amendment is approved, the Certificate of Incorporation would be
amended by adding an Article TENTH reading in its entirety
as follows:
“TENTH, Whenever shareholders are required or permitted to
take any action by vote, such action may be taken without a
meeting on written consent, setting forth the action so taken,
signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.”
Section 615 of the NYBCL provides in pertinent part that
‘‘[5w]5henever...shareholders are required or permitted
to take any action by vote, such action may be taken without a
meeting on written consent, setting forth the action so taken,
signed by the holders of all outstanding shares entitled to vote
thereon, or, if the Certificate of Incorporation so permits,
signed by the holders of outstanding shares having not less than
the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.” Our Certificate of
Incorporation does not currently contain a provision permitting
the shareholders having the minimum number of votes necessary to
authorize an action to do so by written consent. Our Board
believes that the addition of such a provision would be in the
best interests of the Company and its shareholders. It will
allow us, in situations where we can obtain the requisite
consent in writing, to take prompt action with respect to
corporate opportunities that develop, without the delay and
expense of convening a shareholder meeting for the purpose of
approving the action. The Board believes that in such cases
where shareholders representing the requisite number of votes
necessary to authorize an action have already consented to a
given action, the shareholder meeting becomes a formality that
utilizes time and resources that are better spent on other
corporate functions. Upon the closing of5 the previously
announced Private Placement on September 21, 2007, Matlin
Patterson became the holder of a majority of our outstanding
capital stock. As previously disclosed in the Company’s
annual meeting proxy statement, Matlin Patterson has indicated
its intention to vote in favor of Proposal 25 and therefore
Proposal 2 will be5 approved. Accordingly, following
the
approval of Proposal 2, Matlin Patterson5 will be able to
determine matters submitted to a vote of shareholders, such as
approval of significant corporate transactions, unilaterally5 by
written consent and without a shareholder meeting 5until such
time as its ownership interest decreases to less than fifty
percent (50%).5 The proposed amendment to the Certificate of
Incorporation would be reflected in Article TENTH of such
Certificate, as detailed in the Certificate of Amendment
attached hereto as Appendix A5.
The proposed amendment will become effective, after shareholder
approval, upon the filing of a Certificate of Amendment to the
Company’s Certificate of Incorporation by the New York
Secretary of State.
Required
Vote
Required Approval. The affirmative vote of the
holders of a majority of the shares outstanding as of the record
date is required for the approval of the amendment to the
Certificate of Incorporation to permit the shareholders to act
by less than unanimous written consent. The Board has
unanimously voted in favor of the proposed amendment.
The Board unanimously recommends that the Company’s
shareholders vote “For” the proposal to amend the
Company’s Certificate of Incorporation to permit the
shareholders to act by less than unanimous written consent.
5
Table of Contents
The following table sets forth information concerning the beneficial
ownership of common stock of the Company as of September 30, 2007, by (i) persons owning more than 5%
of the common stock, (ii) each director of the Company and the current and
former executive officers included in the Summary Compensation Table and (iii) all directors
and current executive officers of the Company as a group. An asterisk
in the percentage column indicates that a person or group beneficially owns less than 1% of the outstanding shares.
| Deferred | ||||||||||||
| Shares Beneficially Owned(1) | Stock | |||||||||||
| Units(5) | ||||||||||||
| Name | Number | Percent | Number | |||||||||
MatlinPatterson FA Acquisition LLC(7) |
37,909,383 | 69.86 | % | 0 | ||||||||
Mark R. Patterson (7) |
37,909,383 | 69.86 | % | 0 | ||||||||
David J. Matlin (7) |
37,909,383 | 69.86 | % | 0 | ||||||||
Lee Fensterstock |
0 | * | 1,000,000 | |||||||||
Christopher R. Pechock |
0 | * | 0 | |||||||||
Frank Plimpton |
0 | * | 0 | |||||||||
Robert S. Yingling |
0 | * | 0 | |||||||||
Peter J. McNierney(2) |
447,302 | * | 600,000 | |||||||||
Alan P. Goldberg(2)(4) |
787,861 | 1.44 | % | 12,433 | ||||||||
George C. McNamee(2)(3)(6) |
1,766,669 | 3.25 | % | 18,935 | ||||||||
Brian Coad(2) |
55,641 | * | 200,000 | |||||||||
Carl P. Carlucci, Ph.D.(2) |
31,100 | * | 0 | |||||||||
Dale Kutnick(2) |
43,564 | * | 0 | |||||||||
Gordon J. Fox(2) |
28,464 | * | 10,638 | |||||||||
Paul W. Kutey(2) |
7,212 | * | 638 | |||||||||
All directors and current executive officers as a group (11 persons)(2) |
40,286,734 | 73.91 | % | 1,894,582 | ||||||||
| * | References ownership of less than 1.0%. | |
| (1) | Except as noted in the footnotes to this table, the persons named in the table have sole voting and investment power with respect to all shares of Common Stock. | |
| (2) | Includes shares of Common Stock that may be acquired within 60 days of September 30, 2007 through the exercise of stock options as follows: Mr. Coad: 10,000; Mr. Goldberg: 383,100; Mr. McNamee: 155,319; Mr. McNierney: 52,500; Mr. Carlucci: 6,000; Mr. Kutnick: 6,000; and all directors and current executive officers as a group: 245,324. | |
| (3) | Includes 34,617 shares owned by Mr. McNamee’s spouse and through her retained annuity trust. Also includes 39,330 shares owned by Mr. McNamee as custodian for his minor children. | |
| (4) | Includes 13,542 shares held by the Goldberg Charitable Trust. Mr. Goldberg is the co-trustee of such trust and disclaims beneficial ownership of such shares. Also includes 5,715 shares held by various trusts for Mr. Goldberg’s family members for which Mr. Goldberg is a trustee; Mr. Goldberg disclaims beneficial ownership of all such shares. | |
| (5) | The amounts shown represent restricted stock units held under the Company’s 2007 “Incentive Compensation Plan that may possibly be exchanged for shares of Common Stock within 60 days of September 30, 2007 by reason of any potential termination, death or disability of the listed directors or officers as follows: Mr. Fensterstock: 100,000 upon termination or 1,000,000 upon death or disability; Mr. McNierney: 60,000 upon termination or 600,000 upon death or disability; Mr. Coad: 20,000 upon termination or 200,000 upon death or disability; and, all current directors and executives as a group: 187,500 upon termination or 1,875,000 upon death or disability. The amounts also include the number of phantom stock units held under the Company’s nonqualified deferred compensation plans that may possibly be exchanged for shares of Common Stock within 60 days of September 30, 2007 by reason of any potential termination of the listed directors or officers as follows: Mr. Fox: 10,638; Mr. Goldberg: 12,433; Mr. Kutey: 638; Mr. McNamee: 18,935; and all directors and current executive officers as a group: 19,582. These amounts do not take into consideration the potential application of Section 409A of the Internal Revenue Code which in some cases could result in a delay of the distribution beyond 60 days. | |
| (6) | Includes 1,146,195 shares pledged by Mr. McNamee in connection with a loan from KeyBank. No other current director, nominee director or executive officer has pledged any of the shares of common stock disclosed in the table above. | |
| (7) | The indicated interest was reported on a Schedule 13D/A filed on September 25, 2007, with the SEC by MatlinPatterson FA Acquisition LLC on behalf of itself, MatlinPatterson LLC, MatlinPatterson Asset Management LLC, MatlinPatterson Global Advisers LLC, MatlinPatterson Global Partners II LLC, MatlinPatterson Global Opportunities Partners II, L.P., MatlinPatterson Global Opportunities Partners (Cayman) L.P., David J. Matlin, and Mark R. Patterson. Beneficial ownership of the shares held by MatlinPatterson FA Acquisition LLC — 37,909,383 (shared voting and shared dispositive power) was also reported for: MatlinPatterson Global Opportunities Partners II L.P. — 37,909,383 (shared voting and shared dispositive power), MatlinPatterson Global Opportunities Partners (Cayman) II L.P. — 37,909,383 (shared voting and shared dispositive power), MatlinPatterson Global Partners II LLC — 37,909,383 (shared voting and shared dispositive power), MatlinPatterson Global Advisers LLC — 37,909,383 (shared voting and shared dispositive power), MatlinPatterson Asset Management LLC — 37,909,383 (shared voting and shared dispositive power), MatlinPatterson LLC — 37,909,383 (shared voting and shared dispositive power), David J. Matlin — 37,909,383 (shared voting and shared dispositive power), and Mark R. Patterson — 37,909,383 (shared voting and shared dispositive power). |
6
Table of Contents
On May 14, 2007, the Company entered into 5the 5Investment
Agreement 5with MatlinPatterson providing for the purchase by
MatlinPatterson, upon the terms and subject to the conditions of
the Investment Agreement, of 33,333,333 newly issued shares of
the Company’s common stock, par value $.01 per share, for
an aggregate cash purchase price of $50 million. The
5MatlinPatterson transaction closed following shareholder
approval5 on September 21, 2007. Pursuant to the terms of5
the Investment Agreement5, MatlinPatterson purchased 37,909,383
newly-issued shares5 of the Company’s5 common stock for a
purchase price of $49,420,000. The 37,909,383 shares5 of
5common stock represent approximately 69.74%5 of 5the issued and
outstanding voting power of5 the Company immediately following5
the closing5.
In accordance with5 5the Investment Agreement, Alan P. Goldberg,
Shannon O’Brien and Nicholas A. Gravante, Jr.
each resigned as directors5 of the Company, and Mark Patterson,
Christopher Pechock, Frank Plimpton5, 5Lee Fensterstock and Robert
Yingling, were appointed to5 the Board. Lee Fensterstock was also
appointed5 Chairman of the Board and Chief Executive Officer and
Peter5 McNierney was appointed5 President and Chief Operating
Officer5.
A more detailed description of the above transaction can be
found in our Current Report on
Form 8-K
filed with the SEC on May 15, 2007,5 on Form 14A filed
with the SEC on August 31, 2007, and in our Current Report
on
Form 8-K
filed with the SEC on September 27,5 2007.
This proxy statement contains “forward-looking
statements.” These statements are not historical facts but
instead represent the Company’s belief regarding future
events, many of which, by their nature, are inherently uncertain
and outside of the Company’s control. The Company’s
forward-looking statements are subject to various risks and
uncertainties, including the conditions of the securities
markets, generally, and acceptance of the Company’s
services within those markets and other risks and factors
identified from time to time in the Company’s filings with
the SEC. It is possible that the Company’s actual results
and financial condition may differ, possibly materially, from
the anticipated results and financial condition indicated in its
forward-looking statements. You are cautioned not to place undue
reliance on these forward-looking statements. The Company does
not undertake to update any of its forward-looking statements.
At the date of this proxy statement, the Company has no
knowledge of any business other than that described above that
will be presented at the special meeting. If any other business
should come before the special meeting, it is intended that the
persons named in the enclosed proxy will have discretionary
authority to vote the shares that they represent.
PLEASE NOTE THAT UPON WRITTEN REQUEST THE COMPANY WILL
PROVIDE TO EACH SHAREHOLDER, WITHOUT CHARGE, A COPY OF ITS
ANNUAL5 REPORT TO THE SECURITIES
7
Table of Contents
AND EXCHANGE COMMISSION ON
FORM 10-K
FOR THE YEAR ENDED DECEMBER 31, 2006. REQUESTS SHOULD BE
DIRECTED TO JESSICA STANLEY, EXECUTIVE ASSOCIATE, FIRST ALBANY
COMPANIES INC., ONE PENN PLAZA5, 42ND FLOOR, NEW YORK5, NY
10119.5
You are urged to sign and to return your Proxy promptly in the
enclosed return envelope to make certain your shares will be
voted at the meeting.
By Order of the Board of Directors
Lee Fensterstock
Chairman5 and Chief Executive Officer
New York5, New York
October [ ], 2007
Chairman5 and Chief Executive Officer
New York5, New York
October [ ], 2007
8
Table of Contents
LIST OF
APPENDICES
|
Appendix A
|
— | Amendment to the Certificate of Incorporation | ||
|
Appendix B
|
— | Voting Agreement | ||
|
Appendix C
|
— | License Agreement |
9
Table of Contents
Appendix
A
CERTIFICATE
OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF5 FIRST ALBANY COMPANIES INC.
Under Section 8055 of the5 New York Business Corporation
Law
FIRST: The name5 5of the Corporation is5 First Albany
Companies Inc.
SECOND: The Certificate5 5of Incorporation5 of 5the
Corporation
was filed5 5by 5the Department5 of State
5 5on November 4, 1985.5
THIRD5: The amendment effected by5 5this certificate5
5of
amendment
is as follows5:
Paragraph FIRST
of the Certificate of Incorporation relating to the name of the
Corporation is hereby amended5 5to read5 in5 5its
entirety5
5as follows5:5
555555555
555555555
“FIRST5,
The name5 of the Corporation5 is Broadpoint
Securities
Group5, Inc.5”
FOURTH: The
Certificate of Incorporation
is
hereby
further amended5 5by adding a Paragraph TENTH5 to5 5the5
5Certificate5 5of Incorporation pertaining5 to shareholder written
consent5 5as follows:5
“TENTH5, Whenever shareholders are required5 or permitted5
to
take5 any action5 5by vote5, 5
such action may be5 5taken without5 a
meeting5 on written consent5, setting forth the
action so5 taken5,
signed5 by 5the holders5 of outstanding shares having5
not5 5less than
5the minimum number of votes5 that would be necessary5 5
to authorize5
or take such action at a meeting at which5 5all shares entitled5 to
vote thereon were present5 and voted5.5”
FIFTH: The5 foregoing amendments5 5to the Certificate5
of
Incorporation were authorized by resolution5 of the Board5 of
Directors followed5 by an affirmative vote5 5of 5the
holders5 of 5a
majority5 of the outstanding shares5 of common stock5 5
of5 5the
Corporation entitled5 to vote thereon at a meeting5 5of
shareholders5.
| By: 5 |
Name: Lee Fensterstock Title: Chairman and Chief Executive Officer5 |
|
| By: |
Name: Patricia Arcierco-Craig Title: Assistant Secretary5 |
A5-15
Table of Contents
Appendix
B
VOTING
AGREEMENT
This Voting Agreement dated as of June 29,5 2007 (the
“Agreement”), is made by and between DEPFA Bank
plc, an Irish public limited company (“DEPFA”),
and MatlinPatterson FA Acquisition LLC, a Delaware limited
liability company (“MatlinPatterson”).
PRELIMINARY
STATEMENTS
A. DEPFA entered into the Asset Purchase Agreement
(the “Asset Purchase Agreement”), dated as of
March 6, 2007, with First Albany Capital Inc., a New York
corporation (“FA Capital”), and First Albany
Companies Inc., a New York corporation (“FAC”).
B. MatlinPatterson entered into the Investment
Agreement (the “Investment Agreement”) dated as
of May 14, 2007 with FAC, whereby MatlinPatterson will
acquire certain shares of FAC common stock, par value $0.01 per
share (the “Common Stock”).
C. Under the Asset Purchase Agreement, FAC agreed to
include as a management proposal, to be voted on by the
shareholders of FAC at its next annual meeting of shareholders
no later than June 30, 2007, an amendment to its
certificate of incorporation (the “Charter
Amendment”) changing its corporate name to a name that
does not include the words “First Albany” or any
derivative thereof or the word “FA” except for certain
agreed derivations provided in Schedule 2.2 thereto. The
approval of the Charter Amendment by FAC’s shareholders is
a condition precedent to the closing of the transactions
contemplated by the Asset Purchase Agreement.
D. FAC is seeking DEPFA’s consent to waive the
requirement to have a shareholder meeting on the Charter
Amendment by June 30, 2007, and as a condition to granting
such waiver, DEPFA has requested that MatlinPatterson enter into
this Agreement and vote any Shares held by MatlinPatterson in
favor of the Charter Amendment.
E. As used herein, the term “Shares”
includes all shares of such Common Stock as to which
MatlinPatterson and its affiliates (at any time prior to the
termination of this Agreement) are the beneficial owner or is
otherwise able to direct the voting thereof and all securities
issued or exchanges with respect to any such Shares upon any
reclassification, recapitalization, reorganization, merger,
consolidation, spin-off, stock split, combination, stock or
other dividend or any other change in FAC’s capital
structure.
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties to this Agreement intending to be
legally bound do agree as follows:
1. Representations and
Warranties. MatlinPatterson represents and
warrants to DEPFA that (i) upon the closing of the
recapitalization of FAC contemplated by the Investment
Agreement, MatlinPatterson expects to own and have the right to
vote Shares constituting a majority of the shares of Common
Stock then outstanding; (ii) this Agreement has been duly
authorized, executed and delivered by all necessary
organizational action of MatlinPatterson; and (iii) this
Agreement constitutes the legal, valid and binding obligation of
MatlinPatterson, enforceable in accordance with its terms.
2. Agreements with Respect to the
Shares. MatlinPatterson agrees during the term of
this Agreement:
(i) to vote the Shares in favor of the Charter Amendment at
every meeting of the stockholders of FAC at which such matter is
considered and at every adjournment thereof;
(ii) not to solicit, encourage or recommend to other
stockholders of FAC that (x) they vote their shares of
Common Stock or any other securities in any contrary manner, or
(y) they not vote their shares of Common Stock at
all; and
(iii) to vote the Shares (x) in favor of the approval
of Asset Purchase Agreement, if submitted to a vote of the FAC
stockholders, and (y) against any Incompatible Transaction
submitted to a vote of the FAC stockholders.
B-1
Table of Contents
For purposes of this Agreement, a “Incompatible
Transaction” shall mean a transaction of any kind
(including, without limitation, a merger, consolidation, share
exchange, reclassification, reorganization, recapitalization,
sale or encumbrance of substantially all the assets of FAC or FA
Capital outside the ordinary course of business, or sale or
exchange by stockholders of FAC or FA Capital of all or
substantially all the shares of FAC’s or FA Capital’s
capital stock) proposed by any person(s) pursuant to which
(x) a person other than FA Capital would become the owner
of the Business (as defined in the Asset Purchase Agreement),
unless such person assumes the obligations of FA Capital under
the Asset Purchase Agreement, or (y) a person other than
FAC would become the controlling shareholder of FA Capital,
unless such person assumes the obligations of FAC under the
Asset Purchase Agreement. For the avoidance of doubt, the
Investment Agreement and the transactions contemplated thereby
as of the date hereof shall not constitute an Incompatible
Transaction.
3. Limitation on Sales. During the
term of this Agreement, MatlinPatterson agrees not to sell,
assign, transfer, loan, tender, pledge, hypothecate, exchange,
encumber or otherwise dispose of, or issue an option or call
with respect to, any of the Shares unless the transferee,
pledgee, optionee or other counterparty, to the extent it could
acquire rights to vote such Shares during the term of this
Agreement, agrees to be bound by and subject to the terms and
conditions of this Agreement as if such transferee, pledgee,
optionee or other counterparty had executed this Agreement on
the date hereof.
4. Specific
Performance. MatlinPatterson acknowledges that it
will be impossible to measure in money the damage to DEPFA if
MatlinPatterson fails to comply with the obligations imposed by
this Agreement, and that, in the event of any such failure,
DEPFA will not have an adequate remedy at law or in damages.
Accordingly, MatlinPatterson agrees that injunctive relief or
any other equitable remedy, in addition to any remedies at law
or damages, is the appropriate remedy for any such failure and
will not oppose the granting of any such remedy on the basis
that DEPFA has an adequate remedy at law. MatlinPatterson agrees
not to seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with DEPFA seeking
or obtaining such equitable relief.
5. Publicity. MatlinPatterson
agrees that, from the date hereof through the Closing Date, it
shall not issue any public release or announcement concerning
the transactions contemplated by this Agreement without the
prior consent of DEPFA (which consent shall not be unreasonably
withheld or delayed), except as such release or announcement, in
the opinion of MatlinPatterson’s counsel, may be required
by applicable law or NASDAQ rule.
6. Term of Agreement; Termination.
The term of this Agreement shall commence on the date hereof and
shall terminate upon the earlier to occur of (i) the
Closing Date (as defined in the Asset Purchase Agreement) and
(ii) the due and proper termination of the Asset Purchase
Agreement in accordance with its terms. Upon such termination,
no party shall have any further obligations or liabilities
hereunder.
7. Miscellaneous.
(a) Entire Agreement. This Agreement
constitutes the entire agreement among the parties with respect
to the subject matter of this Agreement and supersedes all prior
written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter of this
Agreement.
(b) Notices. Any notice, request,
instruction or other document to be given hereunder by any party
to the others shall be in writing and shall be deemed to have
been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight
delivery, or five calendar days after the same is sent, if sent
by registered or certified mail, return receipt requested,
postage prepaid, as set forth below, or to such other persons or
addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
If to DEPFA:
DEPFA BANK plc
1, Commons Street
Dublin 1
Ireland
Facsimile: +5 353 1 792 2210
Attention: Legal Department
1, Commons Street
Dublin 1
Ireland
Facsimile: +5 353 1 792 2210
Attention: Legal Department
B-2
Table of Contents
and
DEPFA BANK plc, New York branch
623 Fifth Avenue, 22nd Floor
New York, NY 10022
Facsimile: 212 796 9219
Attention: Executive Director
New York, NY 10022
Facsimile: 212 796 9219
Attention: Executive Director
If to MatlinPatterson:
MatlinPatterson FA Acquisition LLC
c/o MatlinPatterson Global Advisers LLC
520 Madison Avenue, 35th Floor
New York, New York 10022
Attention: General Counsel
Fax: (212) 651-4011
c/o MatlinPatterson Global Advisers LLC
520 Madison Avenue, 35th Floor
New York, New York 10022
Attention: General Counsel
Fax: (212) 651-4011
(c) Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of the
State of New York as applied to contracts made and fully
performed in such state without giving effect to the principles
of conflict of laws thereof.
(d) Rules of Construction. The
descriptive headings in this Agreement are inserted for
convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
Words used in this Agreement, regardless of the gender and
number specifically used, shall be deemed and construed to
include any other gender, masculine or feminine, or neuter, and
any other number, singular or plural, as the context requires.
As used in this Agreement, the word “including” is not
limiting, and the word “or” is not exclusive.
(e) Parties in Interest. This Agreement
shall be binding upon and inure solely to the benefit of the
parties to this Agreement and their legal
successors-in-interest,
and nothing in this Agreement, express or implied, is intended
to confer upon any other person any rights or remedies of any
nature whatsoever under or by reason of this Agreement.
(f) Counterparts. This Agreement may be
executed in one or more counterparts, and each of such
counterparts shall for all purposes be deemed to be an original,
but all such counterparts together shall constitute but one
instrument.
(g) Assignment. No party hereto shall
assign its rights and obligations under this Agreement or any
part thereof, nor shall any party assign or delegate any of its
rights or duties hereunder without the prior written consent of
the other party, and any assignment made without such consent
shall be void. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
(h) Amendment. This Agreement may not be
amended except by an instrument in writing signed on behalf of
all the parties.
(i) Extension; Waiver. Any party to this
Agreement may extend the time for the performance of any of the
obligations or other acts of any of the other parties to this
Agreement or waive compliance by any other party with any of the
agreements or conditions contained herein or any breach thereof.
Any agreement on the part of any party to any such extension or
waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
(j) Severability. The provisions of this
Agreement are severable and, if any thereof are invalid or
unenforceable in any jurisdiction, the same and the other
provisions hereof shall not be rendered otherwise invalid or
unenforceable.
B-3
Table of Contents
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have duly executed this Voting Agreement
as of the date first above written.
DEPFA BANK, PLC
| By: |
/s/ Jim
Ryan
|
Name: Jim Ryan
| Title: | Managing Director |
| By: |
/s/ John
Andrade
|
Name: John Andrade
| Title: | Director |
MATLINPATTERSON FA ACQUISITION LLC
| By: |
/s/ Robert
H. Weiss
|
Name: Robert H. Weiss
| Title: | Vice President and Secretary |
B-4
Table of Contents
Appendix
C
LICENSE
AGREEMENT
This LICENSE AGREEMENT5 5(5this 5“Agreement5”5
) 5is
made5 and entered into5 this
14th
day5 of
September,
2007
5 (5the
“
Effective
5 Date
”
5)5,
5by 5and
between
Depfa First Albany Securities LLC5, 5a
New York
limited liability company(5“Licensor5”)5
,
and First Albany Companies Inc5.5, a New York corporation5
(5“Licensee5”). Licensor5 5and Licensee
will5 5be
5referred to herein collectively as the
“Parties5” and each individually as a
“Party5.” Capitalized terms5 not 5otherwise
defined5 5herein 5shall have the meanings given5 to 5such
terms in5
the APA5 (5as defined below5)5.
WHEREAS5,
Licensor
First Albany Companies Inc., a New York Corporation, and DEPFA BANK
plc (“DEPFA”)5 5have
entered into that certain
Asset Purchase5 Agreement, dated March 6, 20075 5(the
“APA5”)5,5 5pursuant to5 5which5,
among other things5,
DEPFA5 will purchase5 at 5the Closing Licensee5
’s 5Municipal
Capital Markets Group5 and certain related assets5, including
without limitation all right5, title5 and 5interest 5to the
common
law trademark5 “First Albany5” 5(the
“Mark5”);5
WHEREAS,
DEPFA and Licensor have entered into that certain Assignment
Agreement, dated September 13, 2007, pursuant to which, among
other things, DEPFA assigned, and Licensor assumed, all of
DEPFA’s rights and obligations under the APA;
WHEREAS, 5in accordance5 5with Section 8.25
of the APA5,
Licensee will include5 as 5a management proposal5 5to 5be
voted5 on 5by
its shareholders at its next special meeting5 of shareholders5
(the “Meeting5”) 5an amendment5 to its certificate
5
of incorporation changing its corporate name5 to 5a name5 5that
does
not include5 the Mark5 5(such amendment5
, 5the “Charter
Amendment5”);5
WHEREAS, Licensor5 has waived certain provisions5 of 5the
APA so5
that Licensee5 may hold5 the Meeting following5 the5
5Closing5, 5and
5the Parties intend that Licensee will5 have 5the right5 to
continue5
to use5 the Mark as part5 of its official corporate name5 in
accordance with5, 5and subject5 5to5, 5the terms5
and 5conditions 5of
this Agreement5; and
WHEREAS5, 5this License Agreement 5is 5being entered
into5 5at 5the
Closing5.
NOW5, THEREFORE5, the Parties5 agree as follows:
1. License5. Subject5 to the 5terms
5and conditions5 5of this Agreement5, Licensor hereby grants5 to
Licensee5 a non5-exclusive5,
royalty5-free5, non-transferable5,
non-sublicensable license5 (5the “License5”) 5under
Licensor’s5 rights 5in 5and 5to the Mark5 5to
use5 the Mark5 in
Licensee’s official corporate name5 and 5in 5any other context
where5 5(a) 5use 5of Licensee5
’s official corporate name5 is
required5 by applicable law5, including without limitation its
certificate5 5of incorporation5, 5by-laws
5 5and regulatory5 and other
governmental filings5, 5and 5(b) Licensee5 in 5the
ordinary
conduct of its business must5 5use the Mark5 in order5
to identify
itself5, including5 without limitation5 in
correspondence5 and
contracts5.
2. Quality Control5;
Indemnification. Licensee acknowledges5 the high
standards5, quality5, style5 and
image5 of the Mark5 and agrees5 that
it shall5 not take5 any action materially inconsistent5 with 5
the
reputation5 for high quality symbolized5 5by 5the
Mark5. It5 is
acknowledged5 and agreed5 that Licensee5’s 5
obligations under
5the preceding sentence shall5 5be fully satisfied if Licensee
provides5 services under5 5the Mark5 of
5a quality at least
equivalent5 to 5those provided5 by Licensee under5
the Mark
immediately5 prior to the Closing5. Licensee agrees5 5to
indemnify5
and hold harmless5 the Licensor5 against 5any 5and 5all
Losses5 5and
Expenses incurred5 by Licensor5 in connection5 with 5
or arising from5
any 5breach 5by Licensee5 5of 5any of5 5its
covenants5 5or agreements5
contained in this Agreement; provided5, 5that 5such
indemnification5 by Licensee5 (x5)
5will 5be subject5 5to the
terms5 and limitations contained5 in Article XI5 of the
APA5 as
if5 such indemnification were included5 in 5Section 11.15(5a5)
of
5the APA together5 with 5the other indemnifications5 by
Licensee5 and
Seller therein5 and 5(y5) 5shall
survive for5 5the period5 of 5the
Term5.
3. Assignment5. Licensor5 shall not
assign, convey5 or 5otherwise 5transfer or 5dispose of 5the
Mark5 to
any third party5, 5and 5any attempt5 to do so
5 by Licensor5 shall 5be
null5 and void5, unless5 such
assignee5 5or transferee agrees5 in
writing 5that 5such assignment5, conveyance5 or transfer
5 shall be
5subject to 5the terms5 of this Agreement5. At Licensee5’s
expense5, Licensor will take all5 commercially reasonable
actions5
and execute all documents necessary5 to effect the foregoing5.
4. Representations5 and
Warranties55. Licensor5 hereby represents5
5and
warrants5 to Licensee5 5that5: (5a5)
Licensor has5 the power5 to
execute5 and deliver5 this Agreement5 and
all rights5 necessary to
grant5 the License5; 5and 5(b5
) 5the
C-15
Table of Contents
License and 5the grant5 thereof 5does not5, and will
5 5not5, conflict5
with 5or otherwise violate5 5(i) 5any agreements
5 to 5which
Licensor is5 a 5party 5or by5 5which
Licensor’s assets5 are
bound5, 5or 5(ii) 5any 5of
Licensor5’s charter documents5.
5. Term. This5 5Agreement shall
become effective5 5on 5the Effective5 Date 5and
continue5 in force5 and
5effect until5 the Charter Amendment is filed5 by Licensee5
with 5the
5New York Department5 5of State5, unless terminated
earlier in
accordance5 with Section 65 (5such period5
of time5, 5the
“Term”)5. The License5
shall survive expiration5
5or termination5 of 5this Agreement5 to 5the
extent5 5that Licensee5 5is
5required 5by 5applicable law5 to use5 the
Mark5 5in connection with
matters5 5that arose5 5prior to the filing
5 of 5the Charter Amendment5.
6. Termination5. Either5 Party
may
terminate5 this Agreement upon written5 notice 5to the 5other 5Party
5if 5the 5other 5Party breaches5 this Agreement and does not cure5
such breach within thirty (30) days of5 receipt 5of 5such
notice.5
7. Covenant; Royalty5. Licensee
will5
use commercially reasonable efforts to effect5 5the Charter
Amendment within sixty (60) days following5 the Closing5 (5the
“Amendment Deadline”5) and thereafter
until the
Charter Amendment5 is effected5. Notwithstanding 5Section 1,5
if the Charter Amendment5 is5 5not effected5 on or before 5the
Amendment Deadline5, then5 5in consideration5
for the License5,
Licensee5 shall pay to Licensor within ten (10) Business
Days following5 the Amendment Deadline5, 5and on each anniversary5
of 5the Amendment Date thereafter until5 this Agreement terminates5
in accordance5 with 5its terms5, an annual royalty fee5
of Fifty
Thousand Dollars ($50,0005).
8. General Provisions5.
5(5a5) 55Notices. All notices or other
communications required or permitted hereunder shall be in
writing and shall be 5given or delivered in5 5the same manner5 5as
5notice 5to the applicable Party is5 5to 5be given5 or
delivered5 under
Section 13.35 of 5the APA5.
(b) Assignment. Neither Party may assign5
this Agreement without5 the prior written consent5 of the other
Party5 (5such consent5 5to 5not
be unreasonably withheld)5, except5
that no consent5 shall be required5 for an assignment
[5by
5Buyer 5to 5its subsidiary5 pursuant to 5Section 13.45 5
of 5the APA5
or]5 to 5a successor5 in interest5
to 5the assigning Party5 or
the acquiror5 of 5all 5or substantially5 all of 5the
assigning
Party’s assets5.
5(c5) 5Governing Law. This Agreement shall
be governed by and construed in accordance with the internal
laws (as opposed to the conflicts of law provisions) of the
State of New York.
(d) 5Submission to Jurisdiction; Waiver of Jury
Trial. The Parties5 hereby irrevocably submit in
any suit, action or proceeding arising out of or related to this
Agreement or any of the transactions contemplated hereby or
thereby to the jurisdiction of the United States District Court
for the Southern District of New York and the jurisdiction of
any court of the State of New York located in the City of New
York and waive any and all objections to jurisdiction that they
may have under the laws of the State of New York or the United
States. Each of the Parties5 hereby waives trial by jury in any
action to which they are parties involving, directly or
indirectly, any matter in any way arising out of, related to or
connected with this Agreement and the transactions contemplated
hereby.
5(e5555) Entire5
Agreement5; Modification55. 5 55This5
5Agreement 5and 5the APA (5including 5all consents5 5and
waivers
related5 to5 5the APA5) supersede5 all5 5
prior agreements between5 the
Parties 5with respect 5to 5this Agreement5’s5 5subject matter5,
and constitute5 a complete5 and exclusive statement5 of 5
the terms
5of 5the agreement between5 5the Parties5 5with respect to 5
such5
5subject matter5. This Agreement may5 not be amended 5except by a
written agreement executed5 by both Parties5.
(f) 5Partial Invalidity. Wherever
possible, each provision hereof shall be interpreted in such
manner as to be effective and valid under applicable law, but in
case any one or more of the provisions contained herein shall,
for any reason, be held to be invalid, illegal or unenforceable
in any respect, such provision shall be ineffective to the
extent, but only to the extent, of such invalidity, illegality
or unenforceability without invalidating the remainder of such
invalid, illegal or unenforceable provision or provisions or any
other provisions hereof, unless such a construction would be
unreasonable.
(g) Waiver5. Any term or provision of this
Agreement may be waived, or the time for its performance may be
extended, by the Party5 entitled to the benefit thereof. Any such
waiver shall be validly and sufficiently authorized for the
purposes of this Agreement if, as to any Party, it is authorized
in writing by an authorized representative of such Party5. The
failure of any Party5 to enforce at any time any provision of
this Agreement shall not be construed to be a
C-2
Table of Contents
waiver of such provision, nor in any way to affect the validity
of this Agreement or any part hereof or the right of any Party5
thereafter to enforce each and every such provision. No waiver
of any breach of5 this Agreement shall be held to constitute a
waiver of any other or subsequent breach.
(h) 5Counterparts. This Agreement may be
executed and delivered in one or more counterparts, each of
which will be deemed to5 be 5an original copy of this Agreement
and5 all of which, when taken together, will5 be deemed to
constitute5 one and the same agreement5.
5(i5) No Adequate Remedy5.
Each Party
acknowledges that its breach5 of 5this Agreement would cause
irreparable harm5 to the other Party (5the “
Non-Breaching
Party”)5 and the Non-Breaching Party would5 have
no
adequate remedy at law for such breach5. Accordingly5,5 5the Parties
agrees that any Non-Breaching Party5 shall 5be entitled5 to
obtain
an injunction against5 any such breach without the requirement5 of
posting5 a bond5 or other security5.
[SIGNATURE5
PAGE FOLLOWS]5
C-3
Table of Contents
IN WITNESS WHEREOF5, the Parties5 have caused5 this Agreement
to be
executed by their respective authorized officers as of the day
and year5 first written above.
DEPFA
FIRST ALBANY SECURITIES LLC
| By: | /s/ Rodney Kulp |
Name: Rodney Kulp
| Title: | Authorized Person |
| By: | /s/ M.A. Kugler |
Name:M.A. Kugler
| Title: | Authorized Signature |
FIRST ALBANY COMPANIES INC.
| By5: | /s/ Peter McNierney |
Name:Peter McNierney
| Title: | President and Chief Executive Officer |
5C5-4