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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 Registrantþ
Filed by a Party other than the Registranto
Filed by a Party other than the Registranto
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: | ||
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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’sAmended and Restated Certificate of Incorporation(the “Certificate of Incorporation”)to change the name of the Company toBroadpoint 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 toBroadpoint 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 Boardand Chief Executive Officer
Chairman of the Boardand Chief Executive Officer
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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 toBroadpoint 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 toBroadpoint 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 onOctober 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
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Appendix A 5— Amendment to the Certificate of Incorporation | ||||
Appendix B —Voting Agreement | ||||
Appendix C 5— License Agreement | ||||
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One PennPlaza5,42nd Floor
New York, New York 101195
New York, New York 101195
PROXY STATEMENT
[ ]5,20075
This5proxy statement 5isbeing furnished5 5to 5the shareholders5 5of5 5First AlbanyCompanies5 Inc. 5in 5connection with5 5thesolicitation 5 5by5 5the 5Board 5ofproxies5 foruse5 5at the special meeting 5to 5be5 5held 5at[ ]5 5on[ ]5 5at105:00 a.m5. 5(EDT5 )5, 5and 5anypostponements or adjournmentsthereof5.5 Themailing address5 of 5theprincipal office5 of 5the Companyis One Penn Plaza5,42nd Floor5,New York5, New York101195 5andits 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 toBroadpoint 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 aboutOctober [ ], 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 ore-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.
ShareholderProposals for Next Year’s Annual Meeting
The deadline for submitting a shareholder proposal for inclusionin our proxy statement and form of proxy for the 2008 annualmeeting of shareholders is no earlier than 90 days beforethe 2008 annual meeting, and no later than
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the close of business on the later of either (i) theseventieth (70) day prior to the 2008 annual meeting, or(ii) the tenth day following the day the 2008 annualmeeting date was first publicly announced. Shareholders areadvised to review our Bylaws, which contain additionalrequirements with respect to advance notice of shareholderproposals and director nominations. Our current Bylaws areavailable at the SEC’s website,www.sec.gov, or uponwritten request to Investor Relations, First Albany CompaniesInc., One Penn Plaza, 42nd Floor, New York, New York 10119.The proposed amendments to our Certificate of Incorporationreferred to in the proposals is appended to this proxy statementasAppendix Aand will also be available atwww.sec.govor upon written request to our InvestorRelations 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 toBroadpoint 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 onOctober 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 brokerwill notbe 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 toBroadpoint 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.
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TO AMEND THE COMPANY’S CERTIFICATE OF INCORPORATION TO
CHANGE THE NAME OF THE COMPANY TOBROADPOINT SECURITIESGROUP, INC.
On March 6, 2007, the Company and First Albany CapitalInc5.5, 5the Company’swholly-owned subsidiary5, entered intoan asset purchase agreement (5the 5“5Asset Purchase Agreement”) with5 5DEPFABank 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, DEPFAagreed to5 purchasethe Company5’sMunicipal 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 cashandfurther agreedto5 5purchase 5theMCMG5’smunicipal 5 bond 5inventory at 5closingwhich was approximately $48,000,000(the “DEPFATransaction5”).
On September 14, 2007,5 thesale of5 theMCMG and its municipal bond inventory 5toDEPFA was completed5.Upon5 theclosing5, 5theCompany entered5 into 5alicense agreement 5 withDEPFA5,dated5 as 5ofSeptember 14, 2007 (the “License5 Agreement”5)5, to 5allow 5the Company 5to operateunder a tradename but continue5 5tousethename “5First Albany ”5 in 5theCompany’s official corporate name5 and 5inany5 othercontext where use5 of 5the Company’s official corporate name5 isrequired5 byapplicable law5.In accordance with5 the terms5 of 5theLicense Agreement5,we agreed to present for shareholder5 approvalat a special meeting an amendment to our CertificateofIncorporation changing our corporate5 nameto a name that doesnot include the words5 “First Albany”or5 “FA5” or anyderivatives5 thereof 5(the “Charter Amendment5”)5.If5 theCharter Amendment5 is 5noteffected within sixty daysfollowing5 the closing 5of 5the 5DEPFATransaction,5 orNovember 13,5 2007, then5 5inaccordance5 with 5the License5 Agreement,we5 5willpay DEPFA an annual royalty fee5 of$50,000within ten business days5 ofsuch date5 andthereafter on eachanniversary5 ofsuch date until5 theLicense5 Agreement terminates5 inaccordance5 5with itsterms5.A more complete summary5 of 5theLicense Agreement is set forth below5, 5and 5amore detaileddescription5 ofcompletion5 5of theDEPFA Transaction can be found5 inour Current Report5 5onFrom85-Kfiledwith5 theSEC on September 20, 2007.5
On September 21, 2007,the Companycompleted5 thepreviouslyannounced private placement transaction5 (thePrivatePlacement5”)with an affiliate5 5ofMatlinPatterson GlobalOpportunities Partners II5 (5“MatlinPatterson5”)5.MatlinPatterson purchased 37,909,383 newly5-issued shares5 5of the Company5’scommon5 stock5 5for 5a5 5purchase price5 of$49,420,000.5 The37,909,383 shares5 5ofcommon stock representapproximately 69.74%5 of theissued5 andoutstanding voting power5 5of 5the Company. Thenumber5 ofshares issued5 to MatlinPattersonis subject5 toupward adjustment within 60 days5 of theclosing5 of thePrivate Placement based5 on 5thefinal calculation5 5of the Company5’snet tangible book value per share5. Inconnection5 with 5theclosing5,5 5the Company announced5 5thelaunch5 of5 5itsnew corporate brand5,Broadpoint5.We believe5 thenewBroadpoint name reinforces5 the Company5’sbroad experience5 in strategicadvisory services5,debt5 andequity capital raising5, 5andsecondary debt5 andequity sales5 5andtrading, 5 andreflects5 theexecution orientation5 of thefirm5, which isfacilitated5 by 5itsindustry expertise5,structure5 andfocus5 .. A more detailed description of thecompletion of the Private Placement5 can be found in our Current Report onForm 8-K filed with the SEC onSeptember 27,5 2007.
Accordingly5, 5the Board 5isproposing5 thatArticle FIRST5 5of 5our Certificate of Incorporation 5beamended5 5tochangethe name5 of the Company. Thefull text5 5ofArticle FIRST5 of the 5Certificate of Incorporation5, 5asproposedtobe amended5, willread as follows:5
“FIRST,The nameof theCorporation shall5 beBroadpointSecurities Group5,Inc5.5,and5 the name under which it was formedwas5 First AlbanyCompanies Inc5.5”
The proposed Certificate5 ofAmendment5 to 5theCertificate5 ofIncorporation5 is attached to this proxy statement asAppendix A55.
VotingAgreement5
DEPFA entered intoavoting agreement5 with 5MatlinPattersoneffective5 5as5 5ofJune 29,5 2007 (5the“Voting5 Agreement”).Pursuant5 5to 5theVoting Agreement5 ,MatlinPatterson has agreedtovote5 its5 5shares of 5common stock 5infavor5 5of theamendment5 to 5the Company5’s Certificate5 ofIncorporation5 to 5change 5thename5 5of the Company 5at every meeting5 5of 5theshareholders5 5of 5the Companyat5 5 whichsuch matter5 isconsidered5 5and 5atevery adjournment thereof5,
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5and 5not 5tosolicit5,encourage5 or recommend5 to 5othershareholders5 5of theCompany5 thatthey vote their shares5 5of common stock5 in anycontrarymanner5 5orthey not5 vote their shares5 5of commonstock atall5.
As5 5of therecord5 date 5for 5the special meeting5,MatlinPatterson5 5is 5the5 5shareholder5 5ofrecord5 ofapproximately 69.74%5 5of theissued5 andoutstanding common stock entitled5 tovote atthespecial meeting5, 5and inaccordance with5 theVoting5 Agreement5,MatlinPatterson5 willvote5 itsshares in favor5 of 5 theamendment5 to 5theCertificate5 ofIncorporation changingthe name 5of 5the Company 5toBroadpoint Securities Group5,Inc5. 5and5 5it 5 will beapproved5.
This summary5 5of 5theprovisions5 of 5the Voting5 Agreementisqualified5 in 5itsentirety5 by 5thefull text 5 of 5theVoting5 Agreementincluded5 inAppendix Band incorporated5 byreference herein.5
License Agreement
Pursuant5 to 5theLicense Agreement5,DEPFA has granted5 theCompanyanon-exclusive5, 5non-transferable5, 5 non-sublicensable license(5the“License”)5 under 5DEPFA’srights5 in5 5and5 5to thecommon5 lawtrademark “5First Albany” (5the“Mark”)5.The License5 Agreementallows5 the Company5 tousetheMark in5 the Company’sofficial corporate nameand5 5in 5any 5othercontext where (a) use5 of5 5the Company5’sofficial corporate name5 5is required 5by5 5applicablelaw, includingwithout limitation5 itscertificate of incorporation5, 5by-laws5 5and 5regulatory 5andother5 governmentalfilings5, 5and (b) 5the5 5Company 5in the ordinaryconduct5 ofitsbusinessmust5 5use 5theMark5 in order toidentify itself5,including without limitation5 incorrespondence5 5and 5contracts5.The Company5 5has agreed 5thatit5 will nottake5 anyaction materially inconsistent with5 thereputation5 forhigh quality symbolized5 5by 5the Mark5. 5The Company5 5hasalsoagreed touse commercially reasonable efforts5 5toeffect 5 theCharter Amendment within sixty daysfollowing5 5theClosing5 of the 5DEPFAtransaction5, orNovember 13, 2007,5 andthereafteruntil5 theCharter Amendment is effected5.If5 the CharterAmendment is5 noteffected5 byNovember 13,5 5 2007,then5 5inconsideration5 for 5theLicense5, 5theCompany shall pay5 DEPFAanannual royalty fee5 of$50,000 within ten5 business 5days 5of such5 5date 5andthereafter5 oneach anniversary5 of such5 5date 5 until theLicense5 Agreementterminatesin accordance with its terms5.
This5summary of the provisions of theLicense5 Agreement is qualified in its entirety by the full text of theLicense5 Agreement included inAppendix C5 and incorporated by reference herein.
No Appraisal Rights
The shareholders are not entitled to appraisal rights with respect toProposal 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 toBroadpoint 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 toBroadpoint Securities Group, Inc.
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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 thepreviouslyannouncedPrivate Placementon September 21, 2007, MatlinPatterson became the holder of a majority of our outstandingcapital stock. As previously disclosed in the Company’sannual meeting proxy statement, Matlin Patterson has indicatedits intention to vote in favor of Proposal 25 andtherefore Proposal 2will be5 approved. Accordingly,following theapproval of Proposal 2, Matlin Patterson5 will be able todetermine matters submitted to a vote of shareholders, such asapproval of significant corporate transactions, unilaterally5 by written consentandwithout a shareholder meeting 5until such time as its ownership interest decreases toless thanfifty 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 asAppendix 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.
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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). |
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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 5MatlinPattersontransaction closed following shareholderapproval5 onSeptember 21, 2007. Pursuant totheterms of5 theInvestment Agreement5, MatlinPattersonpurchased 37,909,383newly-issued shares5 of theCompany’s5 common stockfor apurchase price of $49,420,000. The 37,909,383 shares5 of 5common stockrepresent approximately 69.74%5 of 5theissued andoutstanding voting power of5 the Companyimmediately following5 theclosing5.
In accordance with5 5theInvestment Agreement, Alan P. Goldberg,Shannon O’Brien and Nicholas A. Gravante, Jr.each resigned as directors5 of theCompany, and Mark Patterson,Christopher Pechock, Frank Plimpton5, 5Lee Fensterstockand RobertYingling, were appointed to5 theBoard. Lee Fensterstock was alsoappointed5 Chairman of the Board and Chief Executive OfficerandPeter5 McNierneywas appointed5 President and Chief Operating Officer5.
A more detailed description of the above transaction can be found in our Current Report onForm 8-K filed with the SEC on May 15,2007,5 on Form 14A filed with the SEC onAugust 31, 2007, and in our Current ReportonForm 8-Kfiled 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 ITSANNUAL5 REPORT TO THE SECURITIES
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AND EXCHANGE COMMISSION ONFORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2006. REQUESTS SHOULD BE DIRECTED TOJESSICA STANLEY, EXECUTIVE ASSOCIATE, FIRST ALBANY COMPANIES INC.,ONE PENN PLAZA5,42ND FLOOR, NEW YORK5, NY10119.5
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
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LIST OF APPENDICES
Appendix A | — | Amendment to the Certificate of Incorporation | ||
Appendix B | — | Voting Agreement | ||
Appendix C | — | License Agreement |
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Appendix A
CERTIFICATEOF AMENDMENT
5OF THE CERTIFICATE OF INCORPORATION
5OF5 FIRST ALBANY COMPANIES INC.
5Under Section 8055of the5New York Business CorporationLaw
FIRST: The name5 5ofthe Corporation is5 First Albany Companies Inc.
SECOND: The Certificate5 5ofIncorporation5 of 5the Corporationwas filed5 5by 5theDepartment5 ofState 5 5onNovember 4, 1985.5
THIRD5: The amendment effected by5 5thiscertificate5 5ofamendment is as follows5:Paragraph FIRST of the Certificate of Incorporation relating to the name of the Corporation is hereby amended5 5toread5 in5 5its entirety5 5asfollows5:5
5555555555555555555555“FIRST5,The name5 of theCorporation5 is BroadpointSecurities Group5,Inc.5”
FOURTH: The Certificate of Incorporation is herebyfurther amended5 5byadding a Paragraph TENTH5 to5 5the5 5Certificate5 5ofIncorporation pertaining5 toshareholder writtenconsent5 5asfollows:5
“TENTH5,Whenever shareholders are required5 orpermitted5 totake5 anyaction5 5byvote5, 5 suchaction may be5 5takenwithout5 ameeting5 onwritten consent5,setting forththe action so5 taken5,signed5 by 5theholders5 ofoutstanding shares having5 not5 5less than 5theminimumnumber ofvotes5 thatwould be necessary5 5 toauthorize5 ortake such action at a meeting at which5 5allshares entitled5 tovote thereon were present5 andvoted5.5”
FIFTH: The5 foregoingamendments5 5to theCertificate5 ofIncorporation were authorized by resolution5 of theBoard5 ofDirectors followed5 byan affirmative vote5 5of 5the holders5 of 5amajority5 ofthe outstanding shares5 ofcommon stock5 5 of5 5theCorporation entitled5 tovote thereon atameeting5 5ofshareholders5.
| By: 5 | Name: LeeFensterstock Title: ChairmanandChief Executive Officer5 | |
| By: | Name: PatriciaArcierco-Craig Title: Assistant Secretary5 |
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5555555555555555555555555555555555555555555555555555555 555555555555555555555
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.
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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
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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 legalsuccessors-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.
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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/ JimRyan |
Name: Jim Ryan
| Title: | Managing Director |
| By: | /s/ JohnAndrade |
Name: John Andrade
| Title: | Director |
MATLINPATTERSON FA ACQUISITION LLC
| By: | /s/ RobertH. Weiss |
Name: Robert H. Weiss
| Title: | Vice President and Secretary |
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555 555 555 5 555
AppendixC
LICENSEAGREEMENT
This LICENSE AGREEMENT5 5(5this 5“Agreement5”5 ) 5ismade5 andentered into5 this14thday5 ofSeptember,2007 5 (5the“Effective 5 Date” 5)5, 5by 5andbetween Depfa First Albany Securities LLC5, 5a New Yorklimited liability company(5“Licensor5”)5 , andFirst Albany Companies Inc5.5,a New York corporation5 (5“Licensee5”).Licensor5 5andLicensee will5 5be 5referred to hereincollectivelyas the “Parties5”and each individually as a“Party5.” Capitalized terms5 not 5otherwisedefined5 5herein 5shall have themeanings given5 to 5such terms in5 theAPA5 (5asdefined below5)5.
WHEREAS5,Licensor First Albany Companies Inc., a New York Corporation, and DEPFA BANK plc (“DEPFA”)5 5haveentered into that certainAsset Purchase5 Agreement,dated March 6, 20075 5(the “APA5”)5,5 5pursuant to5 5which5, among other things5,DEPFA5 willpurchase5 at 5the ClosingLicensee5 ’s 5MunicipalCapital Markets Group5 andcertain related assets5,includingwithout limitation all right5,title5 and 5interest 5to the commonlaw 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, 5inaccordance5 5withSection 8.25 of theAPA5,Licensee will include5 as 5amanagement proposal5 5to 5be voted5 on 5byits shareholders at its next special meeting5 ofshareholders5 (the “Meeting5”) 5anamendment5 toits certificate 5 ofincorporation changing its corporate name5 to 5aname5 5that doesnot include5 theMark5 5(such amendment5 , 5the “CharterAmendment5”);5
WHEREAS,Licensor5 haswaived certain provisions5 of 5the APA so5 thatLicensee5 mayhold5 theMeeting following5 the5 5Closing5, 5and 5theParties intend that Licensee will5 have 5theright5 to continue5 touse5 theMark as part5 ofits official corporate name5 in accordance with5, 5andsubject5 5to5, 5theterms5 and 5conditions 5of this Agreement5; and
WHEREAS5, 5thisLicenseAgreement 5is 5beingentered into5 5at 5theClosing5.
NOW5,THEREFORE5,the Parties5 agree as follows:
1. License5. Subject5 to the 5terms 5andconditions5 5of this Agreement5,Licensor hereby grants5 toLicensee5 anon5-exclusive5, royalty5-free5,non-transferable5,non-sublicensable license5 (5the “License5”) 5underLicensor’s5 rights 5in 5and 5to theMark5 5to use5 theMark5 inLicensee’s official corporate name5 and 5in 5anyother contextwhere5 5(a) 5use 5ofLicensee5 ’sofficial corporate name5 isrequired5 byapplicable law5,including without limitation itscertificate5 5ofincorporation5, 5by-laws 5 5andregulatory5 andothergovernmental filings5, 5and 5(b) Licensee5 in 5the ordinary conduct ofits business must5 5use theMark5 inorder5 toidentifyitself5,including5 withoutlimitation5 in correspondence5 andcontracts5.
2. Quality Control5;Indemnification. Licensee acknowledges5 thehighstandards5,quality5,style5 and image5 of theMark5 andagrees5 that itshall5 nottake5 anyaction materially inconsistent5 with 5 thereputation5 forhigh quality symbolized5 5by 5the Mark5.It5 isacknowledged5 andagreed5 thatLicensee5’s 5 obligations under 5thepreceding sentence shall5 5befully satisfied if Licenseeprovides5 servicesunder5 5theMark5 of 5aquality at leastequivalent5 to 5thoseprovided5 byLicensee under5 theMarkimmediately5 prior to the Closing5.Licensee agrees5 5to indemnify5 andhold harmless5 theLicensor5 against 5any 5and 5all Losses5 5andExpenses incurred5 byLicensor5 inconnection5 with 5 orarising from5 any 5breach 5byLicensee5 5of 5any of5 5its covenants5 5oragreements5 contained in this Agreement;provided5, 5that 5suchindemnification5 byLicensee5 (x5) 5will 5besubject5 5to theterms5 andlimitations contained5 inArticle XI5 of the APA5 asif5 suchindemnification were included5 in 5Section 11.15(5a5) of 5theAPA together5 with 5theother indemnifications5 by Licensee5 andSeller therein5 and 5(y5) 5shallsurvive for5 5theperiod5 of 5theTerm5.
3. Assignment5. Licensor5 shall notassign,convey5 or 5otherwise 5transfer or 5dispose of 5the Mark5 to anythird party5, 5and 5anyattempt5 todo so 5 byLicensor5 shall 5benull5 andvoid5,unless5 such assignee5 5ortransferee agrees5 in writing 5that 5suchassignment5,conveyance5 ortransfer 5 shall be 5subject to 5theterms5 of this Agreement5. AtLicensee5’sexpense5,Licensor will take all5 commercially reasonableactions5 andexecute all documents necessary5 toeffecttheforegoing5.
4. Representations5 andWarranties55. Licensor5 herebyrepresents5 5andwarrants5 toLicensee5 5that5: (5a5) Licensor has5 thepower5 toexecute5 anddeliver5 thisAgreement5 and all rights5 necessary togrant5 theLicense5; 5and 5(b5 ) 5the
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Licenseand 5thegrant5 thereof 5does not5, andwill 5 5not5,conflict5 with 5orotherwise violate5 5(i) 5anyagreements 5 to 5whichLicensor is5 a 5party 5orby5 5which Licensor’s assets5 arebound5, 5or 5(ii) 5any 5of Licensor5’scharter documents5.
5. Term. This5 5Agreement shallbecome effective5 5on 5theEffective5 Date 5and continue5 inforce5 and 5effectuntil5 the Charter Amendmentis filed5 byLicensee5 with 5the 5New YorkDepartment5 5ofState5,unless terminated earlierinaccordance5 withSection 65 (5suchperiod5 oftime5, 5the“Term”)5. TheLicense5 shallsurvive expiration5 5ortermination5 of 5thisAgreement5 to 5the extent5 5thatLicensee5 5is 5required 5by 5applicablelaw5 touse5 the Mark5 5in connection withmatters5 5thatarose5 5prior to thefiling 5 of 5theCharter Amendment5.
6. Termination5. Either5 Party mayterminate5 this Agreement uponwritten5 notice 5to the 5other 5Party 5if 5the 5other 5Partybreaches5 this Agreementand does not cure5 suchbreach within thirty (30) days of5 receipt 5of 5suchnotice.5
7. Covenant;Royalty5. Licensee will5 use commercially reasonable efforts toeffect5 5theCharterAmendment within sixty (60) days following5 theClosing5 (5the“Amendment Deadline”5)and thereafter untiltheCharter Amendment5 iseffected5. Notwithstanding 5Section 1,5 if theCharter Amendment5 is5 5noteffected5 on or before 5theAmendment Deadline5,then5 5inconsideration5 for theLicense5,Licensee5 shall pay toLicensor within ten (10) BusinessDays following5 theAmendment Deadline5, 5andon each anniversary5 of 5theAmendment Date thereafter until5 this Agreementterminates5 inaccordance5 with 5itsterms5,an annual royalty fee5 ofFiftyThousand 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 deliveredin5 5thesame manner5 5as 5notice 5to theapplicable Party is5 5to 5begiven5 or delivered5 underSection 13.35 of 5theAPA5.
(b) Assignment. Neither Party may assign5 this Agreementwithout5 theprior written consent5 of theotherParty5 (5suchconsent5 5to 5not be unreasonably withheld)5,except5 thatno consent5 shall berequired5 foran assignment [5by 5Buyer 5to 5itssubsidiary5 pursuant to 5Section 13.45 5 of 5theAPA5 or]5to 5asuccessor5 ininterest5 to 5theassigning Party5 or theacquiror5 of 5all 5orsubstantially5 all of 5the assigningParty’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. TheParties5 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 theParties5 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 5allconsents5 5and waiversrelated5 to5 5the APA5)supersede5 all5 5 prioragreements between5 the Parties 5with respect 5to 5this Agreement5’s5 5subjectmatter5, andconstitute5 acomplete5 andexclusive statement5 of 5 the terms 5of 5theagreement between5 5theParties5 5with respect to 5 such5 5subject matter5. This Agreementmay5 not be amended 5except by a writtenagreement executed5 byboth 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 theParty5 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 suchParty5. The failure ofany Party5 to enforce at any time any provision of this Agreement shall not be construed to be a
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waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of anyParty5 thereafter to enforce each and every such provision. No waiver of any breachof5 this Agreement shall be held to constitute a waiver of any other or subsequent breach.
(h) 5Counterparts. This Agreement may be executedand deliveredin one or more counterparts, each of whichwill be deemed to5 be 5an originalcopy of this Agreementand5 all of which, when taken together, will5 bedeemed toconstitute5 one and the same agreement5.
5(i5) No Adequate Remedy5. Each Partyacknowledges that its breach5 of 5this Agreementwould causeirreparable harm5 to theother Party (5the“ Non-BreachingParty”)5 and theNon-Breaching Party would5 have noadequate remedy at law for such breach5.Accordingly5,5 5the Partiesagrees that any Non-Breaching Party5 shall 5beentitled5 toobtainan injunction against5 anysuch breach without the requirement5 ofposting5 abond5 orother security5.
[SIGNATURE5 PAGE FOLLOWS]5
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IN WITNESSWHEREOF5, theParties5 havecaused5 this Agreement to beexecuted by their respective authorized officersas of thedayand 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
555| Title: | President and Chief Executive Officer |
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