As filed with the Securities and Exchange Commission on May 5, 2005.
Registration No. 333-_____
UNITED STATES
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 issuer as specified in its charter)
New York 22-2655804
(State of Incorporation) (I.R.S. Employer
Identification No.)
30 S. Pearl Street
Albany, New York 12207-1599
(518) 447-8500
(Address and telephone number of principal executive offices)
FIRST ALBANY COMPANIES INC.
RESTRICTED STOCK INDUCEMENT PLAN FOR DESCAP EMPLOYEES
(Full Title of the Plan)
Gordon J. Fox
Executive Managing Director
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)
Copies to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
Attention: Howard S. Kelberg, Esq.
CALCULATION OF REGISTRATION FEE
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Amount of
be Registered Registered (1) Price Per Share (2) Aggregate Offering Price Registration Fee
---------------------- -------------- ------------------------- ------------------------ ----------------
Common Stock (par value 272,000 shares $6.474 $1,760,928 $207.26
$.01 per share)
(1) This Registration Statement covers 272,000 shares of Common Stock issuable
as restricted stock awards pursuant to the First Albany Companies Inc.
Restricted Stock Inducement Plan for Descap Employees, 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.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) of the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of computing the
registration fee, based on the average price of Common Stock on the NASDAQ
National Exchange on May 3, 2005.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as applicable, 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, 2004.
2. All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act.
3. The description of the Registrant's Capital Stock contained in
the registration statement filed with the Commission pursuant
to Section 12 of the Exchange Act, including 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 Exchange 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 Exchange 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. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 6.07 of this 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 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index attached.
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 the
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
the Registration Statement; and
(iii) 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;
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 by the Registrant pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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 the purpose of
determining any liability under the Securities Act, each filing of the issuer's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act of (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering hereof.
(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 above-mentioned 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, as
amended, 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 May 5, 2005
FIRST ALBANY COMPANIES INC.
By: /s/ Alan P. Goldberg
-----------------------------------
Alan P. Goldberg
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby severally 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 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 requirement of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated below.
SIGNATURE TITLE DATE
/s/ George C. McNamee Chairman May 5, 2005
-------------------------------
George C. McNamee
/s/ Alan P. Goldberg Director, President and Chief Executive May 5, 2005
------------------------------- Officer
Alan P. Goldberg (Principal Executive Officer)
/s/ Steven R. Jenkins Chief Operating Officer and Chief Financial May 5, 2005
------------------------------- Officer
Steven R. Jenkins (Principal Accounting Officer and Principal
Financial Officer)
/s/ Carl P. Carlucci Director May 5, 2005
-------------------------------
Carl P. Carlucci
/s/ Walter Fiederowicz Director May 5, 2005
-------------------------------
Walter Fiederowicz
/s/ Nicholas A. Gravante, Jr. Director May 5, 2005
-------------------------------
Nicholas A. Gravante, Jr.
/s/ Hugh A. Johnson, Jr. Director May 5, 2005
-------------------------------
Hugh A. Johnson, Jr.
/s/ Dale Kutnick Director May 5, 2005
-------------------------------
Dale Kutnick
/s/ Arthur T. Murphy, Jr. Director May 5, 2005
-------------------------------
Arthur T. Murphy, Jr.
/s/ Shannon P. O'Brien Director May 5, 2005
-------------------------------
Shannon P. O'Brien
/s/ Arthur J. Roth Director May 5, 2005
-------------------------------
Arthur J. Roth
EXHIBIT INDEX
Exhibit No. Description
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP as to the legality of the Registrant's Common Stock.
23(a) Consent of Milbank, Tweed, Hadley & McCloy LLP (included in the Opinion filed as Exhibit 5 hereto).
23(b) Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
24 Power of Attorney (set forth on the signature page hereof).
99(a) First Albany Companies Inc. Restricted Stock Inducement Plan for Descap Employees