Registration No. 333-[_____]
As filed with the Securities and Exchange Commission on April 29, 2004
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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FIRST ALBANY COMPANIES INC.
(Exact name of issuer as specified in its charter)
New York 22-2655804
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation)
30 South Pearl Street
Albany, New York 12207
(Address of principal executive offices)
FIRST ALBANY CAPITAL
EMPLOYEES' RETIREMENT AND SAVINGS PLAN
(Full title of Plan)
Stephen P. Wink, Esq.
Secretary and General Counsel
First Albany Companies Inc.
30 South Pearl Street
Albany, New York 12207-1599
(518) 447-8500
(Name, address and telephone number of agent for service)
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Copies to:
Susan P. Serota, Esq
Pillsbury Winthrop LLP
1540 Broadway
New York, New York 10038
(212) 858-1000
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CALCULATION OF REGISTRATION FEE
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| | | |
| | Proposed Maximum | Proposed Maximum |
Title of Securities to be Registered | Amount to be | Offering Price Per | Aggregate Offering | Amount of
| Registered(1) | Share(2) | Price | Registration Fee
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| | | |
Common Stock, par value $.01 per share | 1,004,557 shares | $14.66 | $14,726,805 | $1,865.89
| | | |
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1. This registration Statement covers 1,004,557 shares of Common Stock that are
to be allocated to the accounts of participants in the First Albany Capital
Employees' Retirement and Savings Plan (the "Plan") pursuant to open market
purchases made by participants through the self-directed open brokerage account
feature of the Plan and employer matching contributions made in the form of
Common Stock, including 573 shares that will be allocated to the participants'
accounts pursuant to open market purchases by the Plan with cash held in the
Plan's forfeiture account and 3,984 shares that are currently held in the Plan's
forfeiture account pending allocation to participants' accounts. This
Registration Statement shall also be deemed to cover (i) the rights attached to
each share of Common Stock pursuant to the Rights Agreement dated March 30,
1998, and (iii) pursuant to Rule 416(c), an indeterminate amount of interest to
be offered or sold pursuant to the Plan described herein. Pursuant
to Rule 416(b), the number of shares of Common Stock being registered shall be
adjusted to include any additional shares that may become issuable in connection
with, or as the result of, stock splits, stock dividends or similar
transactions.
2. Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, the
proposed maximum offering price per share is based on the reported average of
the high and low prices for First Albany Companies Inc. Common Stock on the
NASDAQ National Market System on April 28, 2004.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by First Albany
Companies Inc. (the "Registrant") (File No. 0-14140) with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated by reference herein
and shall be deemed to be a part hereof:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, as filed with the Commission on March 12, 2004;
2. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2003; and
3. Description of the Registrant's shares of Common Stock, par value $0.01
per share, 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 filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
registration statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act in each year during which the
offering made by this registration statement is in effect prior to the filing
with the Commission of the Registrant's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in this
registration statement or be a part hereof from and after the filing of such
Annual Report on Form 10-K.
Any statement contained in an Incorporated Document 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 other subsequently filed
Incorporated Document 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 6.07 of the Company'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 of indemnification 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 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.
See Exhibit Index attached.
Item 9. Undertakings.
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 to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
(b) That, for the purpose of determining any liability under the Exchange
Act, each post-effective amendment to 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;
(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; and
(d) That, for purposes of determining any liability under the Exchange Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
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.
Insofar as indemnification for liabilities arising under the Exchange 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 Exchange 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 Exchange Act and will be governed by the final
adjudication of such issue.
SIGNATURES
1. The Registrant. 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 27th
day of April, 2004.
FIRST ALBANY COMPANIES INC.
By: /s/ Alan P. Goldberg
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Alan P. Goldberg,
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
George C. McNamee and Alan P. Goldberg, and each of them acting singly, as his
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, the Registration Statement on Form S-8 filed herewith and any or all
amendments, including pre- and post-effective amendments and supplements to this
Registration Statement, and to file the same, with all 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 to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done. Each of said attorneys-in-fact shall have power
to act hereunder with or without the other.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 27th day of April, 2004:
Signature Title
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/s/ George C. McNamee
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George C. McNamee Chairman
/s/ Alan P. Goldberg
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Alan P. Goldberg President and Chief Executive Officer
/s/ Steven R. Jenkins
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Steven R. Jenkins Chief Financial Officer
(Principal Accounting Officer)
/s/ Hugh A. Johnson, Jr.
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Hugh A. Johnson, Jr. Senior Vice President and Director
/s/ Robert F. Campbell
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Robert F. Campbell Director
/s/ Carl P. Carlucci, PhD.
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Carl P. Carlucci, PhD. Director
/s/ Walter M. Fiederowicz
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Walter M. Fiederowicz Director
/s/ Nicholas A. Gravante, Jr.
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Nicholas A. Gravante, Jr. Director
/s/ Dale Kutnick
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Dale Kutnick Director
/s/ Arthur T. Murphy, Jr.
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Arthur T. Murphy, Jr. Director
/s/ Shannon P. O'Brien
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Shannon P. O'Brien Director
/s/ Arthur J. Roth
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Arthur J. Roth Director
2. The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee under the First Albany Capital Employees' Retirement
and savings Plan 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 27th day of April, 2004.
FIRST ALBANY CAPITAL EMPLOYEES'
RETIREMENT AND SAVINGS PLAN
By: /s/ Stephen P. Wink
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Stephen P. Wink,
Secretary and General Counsel
Member, Administrative Committee
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
filed with
Registration Statement
On
Form S-8
Under
The Securities Act of 1933
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FIRST ALBANY CAPITAL
EMPLOYEES' RETIREMENT AND SAVINGS PLAN
(Full title of the Plan)
First Albany Companies Inc.
(Exact name of issuer as specified in its charter)
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First Albany Companies Inc.
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Exhibit Index
Exhibit
Number Description
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4(a) - Amended and Restated Certificate of Incorporation of First
Albany Companies Inc. (Filed as Exhibit 3(i) to Form 10-Q
filed for the quarter ended June 26, 1998).*
4(b) - Amendment to Certificate of Incorporation of First Albany
Companies Inc. (Filed as Appendix B to Proxy Statement on
Schedule 14A dated May 2, 2000)*
4(c) - Bylaws of First Albany Companies Inc., as amended. (Filed as
Exhibit 3.2 to Form 10-K for year ended December 31, 2002).*
4(d) - Specimen Certificate of Common Stock, par value $.01 per
share. (Filed as Exhibit No. 4 to Registration Statement No.
33-1353).*
5 - The Registrant hereby undertakes that it will submit or has
submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify
the Plan.
23 - Consent of PricewaterhouseCoopers LLP.
24 - Power of Attorney (set forth on the signature page hereof).
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* Incorporated by reference.