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October 11, 2007
United States Securities and Exchange Commission
Division of Corporation Finance
100 F. Street, N.E., Mail Stop 7010
Washington, D.C. 20549
Attention: Pamela A. Long, Assistant Director
Division of Corporation Finance
100 F. Street, N.E., Mail Stop 7010
Washington, D.C. 20549
Attention: Pamela A. Long, Assistant Director
Re: | First Albany Companies Inc. | |
| Preliminary Proxy Statement on Schedule 14A | ||
| Filed July 5, 2007 | ||
| File Nos. 000-14140 | ||
Dear Ms. Long,
On behalf of our client, First Albany Companies Inc. (the “Company”), we are submitting this letterin response to the written comments of the staff (the “Staff”) of the Securities and ExchangeCommission (the “Commission”) contained in your letter dated July 12, 2007 (the “Comment Letter”),with respect to the Preliminary Proxy Statement on Schedule 14A filed by the Company with theCommission on July 5, 2007 (File Nos. 000-14140) (the “Preliminary Proxy Statement”). Inconnection with this response to the Comment Letter, the Company is filing electronically with theCommission today Amendment No. 1 (the “Proxy Statement”) to the Preliminary Proxy Statement. For the convenience of the Staff, we have enclosed a clean copy of the Proxy Statement and one marked to show changes from the Preliminary Proxy Statement.
The headings and numbered items of this letter correspond to the headings and numbered itemscontained in the Comment Letter. For the convenience of the Staff, each of the comments from theComment Letter is restated in bold italics prior to the Company’s response. Capitalized terms usedbut not defined in this letter shall have the meanings given to such terms in the Proxy Statement.
General
| 1. | Please tell us how you have considered the requirements of Item 14(b)(11)of Schedule 14A andArticle 11 of Regulation S-X and the need to provide financial information with respect to thedisposition of the Municipal Capital Markets Group. Note that pro forma presentation of statementsof operations for all periods (i.e. three years) is required for discontinued operations that arenot yet reflected in historical statements. Refer to Rule 11-01(a)(4). Provide us with anysignificance tests performed in determining the significance of the disposition as described inRule 11-01(b). Also, if the business |
United States Securities and Exchange Commission
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represents a significant disposition, please provide unaudited financial statements of thatbusiness in the proxy materials for the same periods required for the registrant.
Response:
As described below, in light of factual developments subsequent to the filing of thePreliminary Proxy Statement on July 5, 2007 and the Company’s receipt of your Comment Letter onJuly 12, 2007, the Company believes it is not required to provide in the Proxy Statement theinformation required by Item 14 of Schedule 14A, including the financial information required byItem 14(b)(11) of Schedule 14A and Article 11 of Regulation S-X. However, as discussed morefully below, the pro forma financial information required by Article 11 of Regulation S-Xrelating to the disposition of the Municipal Capital Markets Group was included in a CurrentReport on Form 8-K filed by the Company on September 20, 2007 in connection with the completionof the disposition.
On September 14, 2007, the Company completed its sale (the “Asset Sale”) to DEPFA BANK plc(“DEPFA”) of the assets comprising its Municipal Capital Markets Group, including all of theCompany’s rights in and to the name “First Albany” or “FA” or any derivatives thereof and the municipal bond inventory of the Municipal Capital Markets Group (suchassets referred to collectively as the “MCMG”), for aggregate consideration of approximately $60million in cash. As of the closing of the Asset Sale (the “Closing”) the MCMG represented less than 40% of theCompany’s total assets. Shareholder approval of the Asset Sale was neither sought nor requiredunder the New York Business Corporations Law which would have required such approval only if theMCMG comprised “all or substantially all” of the assets of the Company. Among other publicdisclosures made by the Company in connection with the Asset Sale, the Closing was publicly disclosed in a Current Report on Form 8-K filed by the Company on September20, 2007. The Form 8-K included the disclosure required under Item 2.01 thereof and pro formafinancial information required by Item 9.01 thereof and Article 11 of Regulation S-X as theAsset Sale did constitute a significant disposition by the Company in accordance with Rule11-01(b) of Regulation S-X.
Also on September 14, 2007, in connection with the Closing, the Company entered into a license agreement with DEPFA (the “License Agreement”) toallow the Company to use the name “First Albany” in the Company’s official corporate name and incertain other instances as provided in the License Agreement. The terms of the LicenseAgreement to be entered into at the Closing were publicly disclosed in a Current Report on Form8-K filed by the Company on July 31, 2007. In accordance with the terms of the LicenseAgreement, the Company agreed to seek shareholder approval for an amendment to its Certificateof Incorporation changing its corporate name to a name that does not include the words “FirstAlbany” or “FA” or any derivatives thereof (the “Charter Amendment”). If theCharter Amendment is not effected by November 13, 2007, the Company will pay DEPFA an annualroyalty fee of $50,000 in connection with its continued use of the name “First Albany”.
In connection with the launch of the Company’s new corporate brand, Broadpoint, and inaccordance with the terms of the License Agreement, the Company is seeking shareholder
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approvalof the Charter Amendment to change its name to Broadpoint Securities Group, Inc. No action isbeing taken with respect to any transaction that would require that the Company provide theinformation required by Item 14 of Schedule 14A. In addition, as a result of the completion ofthe Asset Sale, the proposed Charter Amendment does not involve other matters with respect towhich information is called for by Item 14 of Schedule 14A which might otherwise have beenrequired to be included in the Proxy Statement in accordance with preliminary Note A to Schedule14A.
General — Company Statement
At your request, the Company further acknowledges that:
| • | the Company is responsible for the adequacy and accuracy of the disclosure in theProxy Statement; | ||
| • | Staff comments or changes to disclosure in response to Staff comments do notforeclose the Commission from taking any action with respect to the Proxy Statement;and | ||
| • | the Company may not assert Staff comments as a defense in any proceeding initiatedby the Commission or any person under the federal securities laws of the United States. |
If you have any questions or comments regarding the foregoing or need any additional information,please contact the undersigned at (212) 259-6356.
Sincerely,
/s/ Christopher P. Peterson
Christopher P. Peterson
cc: | Lee Fensterstock, First Albany Companies Inc. | |
| Peter J. McNierney, First Albany Companies Inc. | ||
| C. Brian Coad, First Albany Companies Inc. | ||
| Patricia Arciero-Craig, First Albany Companies Inc. |
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