As filed with the Securities and Exchange Commission on January 10, 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
INCORPORATION OR ORGANIZATION) IDENTIFICATION 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 KEY EMPLOYEES
(FULL TITLE OF THE PLANS)
STEPHEN P. WINK, ESQ.
SECRETARY AND GENERAL COUNSEL
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 SHARE PRICE REGISTRATION FEE
---------------- ---------- ----- ----- ----------------
Deferred Compensation Obligations (1) $15,000,000.00 100% $15,000,000.00(2) $1,765.50
(1) 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 First Albany Companies Inc. 2005
Deferred Compensation Plan For Key Employees.
(2) Estimated solely for purposes of determining the registration fee.
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, 2003, filed with the Commission on
March 12, 2004;
(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, 2003; 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.
Not applicable.
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 10th day of
January, 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/ Alan P. Goldberg January 10, 2005
-------------------------------- Director, President and Chief Executive
Alan P. Goldberg Officer (Principal Executive Officer)
/s/ Steven R. Jenkins January 10, 2005
-------------------------------- Chief Financial Officer (Principal
Steven R. Jenkins Financial Officer and Principal Accounting
Officer)
/s/ George C. McNamee January 10, 2005
--------------------------------
George C. McNamee Director
/s/ Carl P. Carlucci January 10, 2005
--------------------------------
Carl P. Carlucci Director
/s/ Walter W. Fiederowicz January 10, 2005
--------------------------------
Walter W. Fiederowicz Director
/s/ Nicholas A. Gravante, Jr. January 10, 2005
--------------------------------
Nicholas A. Gravante, Jr. Director
/s/ Hugh A. Johnson, Jr.
-------------------------------- January 10, 2005
Hugh A. Johnson, Jr. Director
/s/ Dale Kutnick January 10, 2005
--------------------------------
Dale Kutnick Director
/s/ Arthur T. Murphy January 10, 2005
--------------------------------
Arthur T. Murphy Director
/s/ Shannon P. O'Brien January 10, 2005
--------------------------------
Shannon P. O'Brien Director
/s/ Arthur J. Roth
------------------ January 10, 2005
Arthur J. Roth Director
EXHIBIT INDEX
Exhibit No. Description Method of Filing
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4(a) Certificate of Incorporation of First Albany Incorporated by reference to Exhibit No. 3.1 to
Companies Inc. Registration Statement No. 33-1353.
4(b) Amendment to Certificate of Incorporation of First Incorporated by reference to Exhibit No.(3)(i) to
Albany Companies Inc. Form 10-Q for the quarter ended June 26, 1998.
4(c) Amendment to Certificate of Incorporation of First Incorporated by reference to Appendix B to Proxy
Albany 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 Incorporated by reference to Exhibit No. 4 to
per share. Registration Statement No. 33-1353.
4(f) First Albany Companies Inc. 2005 Deferred Incorporated by reference to Exhibit 10.01 to
Compensation Plan For Key Employees. Form 8-K filed on January 5, 2005.
5 Opinion of the Company's General Counsel 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 Company's General Counsel. Contained in the opinion filed as Exhibit 5.
24 Power of Attorney. Included on the signature page.