As filed with the Securities and Exchange Commission on May 6, 2005
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST ALBANY COMPANIES INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 22-2655804
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
677 BROADWAY
ALBANY, NEW YORK 12207-2990
(518) 447-8500
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
FIRST ALBANY COMPANIES INC.
2005 DEFERRED COMPENSATION PLAN FOR
PROFESSIONAL AND OTHER HIGHLY COMPENSATED EMPLOYEES
(FULL TITLE OF THE PLANS)
GORDON J. FOX
EXECUTIVE MANAGING DIRECTOR
FIRST ALBANY COMPANIES INC.
677 BROADWAY
ALBANY, NEW YORK 12207-2990
(518) 447-8500
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPY OF COMMUNICATIONS TO:
ARTHUR H. KOHN, ESQ.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
ONE LIBERTY PLAZA
NEW YORK, NEW YORK 10006
(212) 225-2000
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) (2) SHARE (3) PRICE REGISTRATION FEE
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Common Stock, $.01 par value 300,000 $6.445 $1,933,500 $227.58
(1) The 300,000 shares to be registered represent shares that will be paid to
participants in the First Albany Companies Inc. 2005 Deferred
Compensation Plan For Professional and Other Highly Compensated Employees
(the "Plan") in satisfaction of certain Deferred Compensation Obligations
that are payable in shares of First Albany Companies Inc. Common Stock
under the terms of the Plan. The Deferred Compensation Obligations are
unsecured obligations of First Albany Companies Inc. to pay deferred
compensation in the future in accordance with the terms of the Plan.
Deferred Compensation Obligations in the amount of $9,000,000.00 were
registered on the Registration Statement on Form S-8 (Registration No.
333-121928) filed by First Albany Companies Inc. on January 10, 2005.
(2) This Registration Statement shall be deemed to cover any additional
shares of Common Stock which will become issuable under such plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction. This Registration Statement also covers the rights
(the "Rights") attached to each share of Common Stock pursuant to the
Rights Agreement dated March 30, 1998. Until the occurrence of certain
specified events, the Rights are not exercisable, are evidenced by the
certificates representing the shares and may be transferred only together
with the shares
(3) Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(c) and 457(h) under the
Securities Act of 1933, as amended, and based upon the average of the
high ($6.49) and low ($6.40) prices of the Common Stock as reported on
the NASDAQ National Exchange on May 5, 2005.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by First Albany Companies
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference herein and made a part hereof:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2004, filed with the Commission on
March 15, 2005;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 2004; and
(c) The description of the Registrant's shares of Common Stock
contained in the Registrant's Registration Statement on Form
8A, filed with the Commission pursuant to Section 12 of the
Exchange Act on January 14, 1986, and any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such reports or other documents.
Any statements contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein (or in any subsequently filed document which also is
incorporated or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock offered pursuant to this Registration
Statement has been passed upon for the Registrant by Patricia Arciero-Craig,
Esq., Assistant Secretary of the Registrant, 677 Broadway, Albany, New York
12207-2990. Ms. Arciero-Craig is the beneficial owner of Common Stock of the
Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6.07 of the Registrant's By-Laws permits the indemnification of
officers and directors under certain circumstances to the full extent that such
indemnification may be permitted by law.
Such rights of indemnification are in addition to, and not in
limitation of, any rights to indemnification to which any officer or director of
the Registrant is entitled under the Business Corporation Law of the State of
New York (Sections 721 through 726), which provides for
indemnification by a corporation of its officers and directors under certain
circumstances as stated in the Business Corporation Law and subject to specified
limitations set forth in the Business Corporation Law. The Registrant has also
purchased director and officer liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibits. See the Exhibit Index immediately following the signature
page hereto.
ITEM 9. UNDERTAKINGS.
(1) The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended
(the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of the employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Albany and the State of New York on the 6th day
of May, 2005.
FIRST ALBANY COMPANIES INC.
By /s/ Alan P. Goldberg
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Name: Alan P. Goldberg
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
Know all men by these presents, that each officer or director
of First Albany Companies Inc. whose signature appears below constitutes and
appoints Alan P. Goldberg and Steven R. Jenkins, and each of them acting singly,
as his or her true and lawful attorney-in-fact and agent, with full and several
power of substitution, to sign for him and in his name, place and stead in any
and all capacities indicated below, the Registration Statement on Form S-8 to be
filed herewith and any and all pre-effective and post-effective amendments and
supplements to the said Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary fully to all intents and purposes as he or she might or
could do in person hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her substitute, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by each of the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ George C. McNamee May 6, 2005
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George C. McNamee Chairman
/s/ Alan P. Goldberg May 6, 2005
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Alan P. Goldberg Director, President and Chief Executive Officer
(Principal Executive Officer)
/s/ Steven R. Jenkins May 6, 2005
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Steven R. Jenkins Chief Operating Officer and Chief Financial Officer
(Principal Accounting Officer and
Principal Financial Officer)
/s/ Carl P. Carlucci May 6, 2005
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Carl P. Carlucci Director
/s/ Walter W. Fiederowicz May 6, 2005
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Walter W. Fiederowicz Director
/s/ Nicholas A. Gravante, Jr. May 6, 2005
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Nicholas A. Gravante, Jr. Director
/s/ Hugh A. Johnson, Jr. May 6, 2005
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Hugh A. Johnson, Jr. Director
/s/ Dale Kutnick May 6, 2005
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Dale Kutnick Director
/s/ Shannon P. O'Brien May 6, 2005
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Shannon P. O'Brien Director
/s/ Arthur J. Roth May 6, 2005
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Arthur J. Roth Director
EXHIBIT INDEX
Exhibit No. Description Method of Filing
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4(a) Certificate of Incorporation of First Albany Companies Inc. Incorporated by reference to Exhibit No. 3.1 to
Registration Statement No. 33-1353.
4(b) Amendment to Certificate of Incorporation of First Albany Incorporated by reference to Exhibit No. (3) (i) to
Companies Inc. Form 10-Q for the quarter ended June 26, 1998.
4(c) Amendment to Certificate of Incorporation of First Albany Incorporated by reference to Appendix B to Proxy
Companies Inc. Statement on Schedule 14A dated May 2, 2000.
4(d) By laws of First Albany Companies Inc., as amended. Incorporated by reference to Exhibit 3.2 to Form
10-K for the fiscal year ended December 31, 2002.
4(e) Specimen Certificate of Common Stock, par value $.01 per share. Incorporated by reference to Exhibit No. 4 to
Registration Statement No. 33-1353.
4(f) First Albany Companies Inc. 2005 Deferred Compensation Plan For Incorporated by reference to Appendix C to Proxy
Professional and Other Highly Compensated Employees. Statement on Schedule 14A dated March 24, 2005.
5 Opinion of the Registrant's Assistant Secretary as to the Filed herewith.
legality of securities offered under the Plan.
23(a) Consent of PricewaterhouseCoopers LLP. Filed herewith.
23(b) Consent of the Registrant's Assistant Secretary. Contained in the opinion filed as Exhibit 5.
24 Power of Attorney. Included on the signature page.