As filed with the Securities and Exchange Commission on June 2, 2003
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
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)
30 S. Pearl Street
Albany, New York 12207-1599
(518) 447-8500
(Address of Registrant's Principal Executive Offices)
FIRST ALBANY COMPANIES INC.
2003 NON-EMPLOYEE DIRECTORS STOCK PLAN
(Full Title of the Plans)
Stephen P. Wink, Esq.
Secretary and General Counsel
First Albany Companies Inc.
30 S. Pearl Street
Albany, New York 12207-1599
(518) 447-8500
(Name, Address, and Telephone Number of Agent for Service)
Copy of communications to:
Arthur H. Kohn, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered (1) per share offering price registration fee
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Common Stock, $.01 par value 4,000 $8.81 (2) $35,240 $2.86
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Common Stock, $.01 par value 96,000 $9.625 (3) $924,000 $74.76
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(1) This Registration Statement covers 100,000 shares of Common Stock issuable
upon exercise of options or covered under other awards granted pursuant to
the First Albany Companies Inc. 2003 Non-Employee Directors Stock Plan
plus 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.
(2) With respect to 4,000 shares covered by options granted prior to the
filing of this Registration Statement, calculated pursuant to Rule 457(h)
under the Securities Act of 1933, as amended (the "Securities Act"), based
on the price at which the options may be exercised.
(3) With respect to 96,000 shares subject to future options grants, estimated
solely for the purpose of determining the amount of the registration fee
in accordance with Rule 457(h) under the Securities Act and based upon the
average of the high ($9.77) and low ($9.48) prices of the Common Stock as
reported on the NASDAQ National Exchange on May 23, 2003.
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, 2002, filed with the Commission on
March 28, 2003;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003, filed with the Commission on May 15,
2003;
(c) The Registrant's Current Reports on Form 8-K filed with the
Commission on March 19, 2003, April 23, 2003 and May 5,
2003;
(d) 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, 2002; and
(e) The description of the Registrant's shares of Common Stock
(the "Shares") 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;
(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 2nd day
of June, 2003.
FIRST ALBANY COMPANIES INC.
By
/s/ Alan P. Goldberg
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Name: Alan P. Goldberg
Title: President and Co-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 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 field
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 June 2, 2002
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George C. McNamee Director, Chairman of the Board and
Co-Chief Executive Officer (Principal
Executive Officer)
/s/ Alan P. Goldberg June 2, 2002
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Alan P. Goldberg Director, President and Co-Chief
Executive Officer
/s/ Steven R. Jenkins June 2, 2002
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Steven R. Jenkins Chief Financial Officer (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Walter W. Fiederowicz June 2, 2002
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Walter W. Fiederowicz Director
/s/ Nicholas A. Gravante, Jr. June 2, 2002
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Nicholas A. Gravante, Jr. Director
/s/ Hugh A. Johnson, Jr. June 2, 2002
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Hugh A. Johnson, Jr. Director
/s/ Dale Kutnick June 2, 2002
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Dale Kutnick Director
/s/ Shannon P. O'Brien June 2, 2002
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Shannon P. O'Brien Director
EXHIBIT INDEX
Exhibit No. Description Method of Filing
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5 Opinion of Cleary, Gottlieb, Steen & Hamilton as to the Filed herewith
legality of the securities being registered
10 First Albany Companies Inc. 2003 Non-Employee Directors Stock Filed herewith
Plan
23.1 Consent of Cleary, Gottlieb, Steen & Hamilton Contained in the opinion filed as
Exhibit 5
23.2 Consent of PricewaterhouseCoopers LLP Filed herewith
24 Power of Attorney Included on the signature page