As filed with the Securities and Exchange Commission on February ___, 1994
Registration No. 33-________
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
REGISTRATION STATEMENT
ON
FORM S-8
Under
THE SECURITIES ACT OF 1933
_______________
FIRST ALBANY COMPANIES INC.
(Exact name of registrant as specified in its charter)
New York 22-2655804
(State of Incorporation) (I.R.S. Employer
Identification No.)
41 State Street
Albany, New York 12207
(Address of principal executive offices, including zip code)
First Albany Companies Inc. Stock Bonus Plan
(Full title of the Plan)
_______________
Michael R. Lindburg, Esq.
Vice President and General Counsel
First Albany Companies Inc.
41 State Street
Albany, New York 12207
(Name and address of agent for service)
(518) 447-8500
(Telephone number, including area
code, of agent for service)
_______________
Copies to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
Attention: Howard S. Kelberg, Esq.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering aggregate registration
to be registered registered price offering fee(2)
(1) per share(2) price(2)
Common Stock, par
value $.01 per
share 300,000 $8.25 $2,475,000 $854.00
=============================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of
1933, the proposed maximum offering price per share and the registration fee
are based on the reported average of the high and low prices for First Albany
Companies Inc.'s Common Stock on the NASDAQ National Market System on
February 2, 1994.
PART I
INFORMATION REQUIRED IN A SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information.
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 "Company") (File No. 0-14140) with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), are incorporated by
reference herein and shall be deemed to be a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 24, 1993.
(b) The First Albany Companies Inc. Stock Bonus Plan's Annual
Report on Form 11-K for the fiscal year ended December 31, 1992.
(c) Description of the Company's Common Stock, par value $.01
per share, contained in the registration statement filed under the
1934 Act, including any amendments or reports filed for the purpose
of updating such description.
All documents, filed by the Company 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
Company 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 Company'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.
See Item 3.
Item 5. Interests of Named Experts and Counsel.
LEGAL OPINION
The legality of the Common Stock offered pursuant to this
Registration Statement has been passed upon for the Company by Michael R.
Lindburg, Vice President and General Counsel of the Company, 41 State Street,
Albany, New York 12207. Mr. Lindburg is the beneficial owner of Common
Stock of the Company, including options to purchase Company Common Stock,
with an aggregate fair market value exceeding $50,000.
EXPERTS
The consolidated statements of financial condition as of
September 24, 1993 and September 25, 1992 and the consolidated statements of
income, changes in stockholders' equity, and cash flows for each of the three
years in the period ended September 24, 1993 of First Albany Companies Inc.
and the statements of net assets available for plan benefits of First Albany
Companies Inc. Stock Bonus Plan as of December 31, 1992 and 1991 and the
statements of changes in net assets available for plan benefits for each of
the three years in the period ended December 31, 1992, incorporated by
reference in this registration statement have been incorporated herein in
reliance on the reports of Coopers & Lybrand, independent accountants given
on the authority of that firm as experts in accounting and auditing.
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 727), 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
______ ___________
4(a) - Certificate of Incorporation of First Albany Companies Inc.
(Designated in Registration Statement No. 33-1353 as Exhibit
3.1).*
4(b) - Bylaws of First Albany Companies Inc.
5(a) - Opinion of the Company's General Counsel as to the legality of
securities offered under the First Albany Companies Inc. Stock
Bonus Plan.
5(b) - Internal Revenue Service determination letters stating that the
First Albany Companies Inc. Stock Bonus Plan is qualified under
Section 401(a) of the Internal Revenue Code of 1986, as amended.
24(a) - Consent of Coopers & Lybrand, independent accountants.
24(b) - Consent of Counsel (contained in the Opinion of the Company's
General Counsel, Exhibit 5(a) hereto).
25(a) - Certified resolutions of the Board of Directors of First Albany
Companies Inc. relating to Power of Attorney set forth on
signature page hereof.
25(b) - Power of Attorney (set forth on the signature page hereof).
____________________
* Incorporated by reference.
Item 9. Undertakings.
(1) The undersigned 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;
(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, represents
a fundamental change in the information set forth in the
registration statement;
(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 registration statement is on Form S-3 or Form S-8 and 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 1934 Act that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 in 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 undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the issuer's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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
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 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, the State of New York, on
the 4th day of February, 1994.
FIRST ALBANY COMPANIES INC.
By: /s/ GEORGE C. McNAMEE
_______________________
George C. McNamee,
Chairman of the Board
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 singly, his
true and lawful attorney-in-fact and agent, with full and several power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-8 to be filed pursuant
to the Securities Act of 1933 in connection with the registration of up to
300,000 shares of Common Stock, par value $.01 per share, 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 and on the 4th day of February, 1994.
Signature Title
--------- ------
/s/ GEORGE C. McNAMEE Director, Chairman and
- ------------------------------ Co-Chief Executive Officer
George C. McNamee (Principal Executive Officer)
/s/ ALAN P. GOLDBERG Director, President and
- ------------------------------ Co-Chief Executive Officer
Alan P. Goldberg
/s/ DAVID J. CUNNINGHAM Vice President and Chief
- ------------------------------ Financial Officer (Principal
David J. Cunningham Financial and Accounting
Officer)
/s/ J. ANTHONY BOECKH Director
- ------------------------------
J. Anthony Boeckh
/s/ HONORABLE HUGH L. CAREY Director
- ------------------------------
Honorable Hugh L. Carey
/s/ HUGH A. JOHNSON Director and Senior Vice
- ------------------------------ President
Hugh A. Johnson
/s/ DANIEL V. McNAMEE, III Director
- ------------------------------
Daniel V. McNamee, III
/s/ ROBERT F. VAGT Director
- ------------------------------
Robert F. Vagt
/s/ BENAREE P. WILEY Director
- ------------------------------
Benaree P. Wiley
Pursuant to the requirements of the Securities Act of 1933,
the Administrative Committee of the First Albany Companies Inc. Stock Bonus
Plan have duly caused this Registration to be duly signed on its behalf by
the undersigned, thereunto duly authorized in the City of Albany, State of
New York, on the 4th day of February, 1994.
FIRST ALBANY COMPANIES INC.
STOCK BONUS PLAN
By:/s/ GEORGE C. McNAMEE
------------------------------
George C. McNamee
Member of the Administrative
Committee
___________________________________________________________
___________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
EXHIBITS
filed with
Registration Statement
On
Form S-8
Under
The Securities Act of 1933
________________
FIRST ALBANY COMPANIES INC. STOCK BONUS PLAN
(Full title of the plan)
First Albany Companies Inc.
(Exact name of issuer as specified in its charter)
___________________________________________________________
___________________________________________________________
First Albany Companies Inc.
______________
Exhibit Index
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
4(a) - Certificate of Incorporation of First *
Albany Companies Inc. (Designated in
Registration Statement No. 33-1353 as
Exhibit 3.1).
4(b) - Bylaws of First Albany Companies Inc.
5(a) - Opinion of the Company's General Counsel
as to the legality of securities offered
under the First Albany Companies Inc.
Stock Bonus Plan.
5(b) - Internal Revenue Service determination
letters stating that the First Albany
Companies Inc. Stock Bonus Plan is
qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended.
24(a) - Consent of Coopers & Lybrand, independent
accountants.
24(b) - Consent of Counsel (contained in the
Opinion of the Company's General Counsel,
Exhibit 5(a) hereto).
25(a) - Certified resolutions of the Board of
Directors of First Albany Companies Inc.
relating to the Power of Attorney set forth
on signature page hereof.
25(b) - Power of Attorney (set forth on signature
page hereof).
__________________
* Incorporated by reference.
Exhibit 4(b)
BY-LAWS
-of-
FIRST ALBANY COMPANIES INC.
(herein called the -"Corporation")
ARTICLE 1
Shareholders
Section 1.01. Annual Meeting. The first annual meeting of
shareholders shall be on the 20th day of January, 1987 at 10:00 A.M. at such
place as shall be fixed by the President and stated in the notice or waiver
of notice of the meeting. Thereafter, the annual meeting of shareholders for
the election of directors and the transaction of such other business as may
come before it shall be held on the third Tuesday of January of each year at
10:00 A.M., or if said day be a legal holiday, then on the next succeeding
day not a legal holiday, and at such place, as shall be fixed by the
President and stated in the notice or waiver of notice of the meeting.
Section 1.02. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, may be called at any time by the
President or by resolution of the Board of Directors. Special meetings of
shareholders shall be held at such place as shall be fixed by the person or
persons calling the meeting and stated in the notice or waiver of notice of
the meeting. At any special meeting only such business may be transacted
which is related to the purpose or purposes set forth in the notice or waiver
of notice of the meeting.
Section 1.03. Notice of Meetings of Shareholders. Whenever
shareholders are required or permitted to take any action at a meeting,
written notice shall be given stating the place, date and hour of the meeting
and, unless it is the annual meeting, indicating that it is being issued by
or at the direction of the person or persons calling the meeting. Notice of
a special meeting shall also state the purpose or purposes for which the
meeting is called. If, at any meeting, action is proposed to be taken which
would, if taken, entitle shareholders fulfilling the requirements of Section
623 of the Business Corporation Law to receive payment for their shares, the
notice of such meeting shall include a statement of that purpose and to that
effect and shall be accompanied by a copy of said Section 623 or an outline
of its material terms. A copy of the notice of any meeting shall be given,
personally or by mail, not less than ten nor more than fifty days before the
date of the meeting, to each shareholder entitled to vote at such meeting.
If mailed, such notice is given when deposited in the United States mail,
with postage thereon prepaid, directed to the shareholder at his address as
it appears on the record of shareholders, or, if he shall have filed with the
Secretary of the Corporation a written request that notices to him be mailed
to some other address, then directed to him at such other address.
When a meeting is adjourned to another time or place, it shall not
be necessary to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted on the original date of the
meeting. However, if after the adjournment, the Board of Directors fixes a
new record date for the adjourned meeting, a notice of the adjourned meeting
shall be given to each shareholder of record on the new record date entitled
to notice under the next preceding paragraph.
Section 1.04. Waivers of Notice. Notice of meeting need not be
given to any shareholder who submits a signed waiver of notice, in person or
by proxy, whether before or after the meeting. The attendance of any
shareholder at a meeting, in person or by proxy, without protesting prior to
the conclusion of the meeting the lack of notice of such meeting, shall
constitute a waiver of notice by him.
Section 1.05. Quorum. The holders of a majority of the shares
entitled to vote thereat shall constitute a quorum at a meeting of
shareholders for the transaction of any business.
When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholders.
The shareholders present may adjourn the meeting despite the
absence of a quorum and at any such adjourned meeting at which the requisite
amount of voting stock shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
Section 1.06. Fixing Record Date. For the purpose of determining
the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to or dissent
from any proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the allotment of
any rights, or for the purpose of any other action, the Board of Directors
may fix, in advance, a date as the record date for any such determination of
shareholders. Such date shall not be more than fifty, nor less than ten days
before the date of such meeting, nor more than fifty days prior to any other
action.
When a determination of shareholders of record entitled to notice
of or to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof,
unless the Board of Directors fixes a new record date under this section for
the adjourned meeting.
Section 1.07. List of Shareholders at Meetings. A list of
shareholders as of the record date, certified by the corporate officer
responsible for its preparation or by a transfer agent, shall be produced at
any meeting of shareholders upon the request thereat or prior thereto of any
shareholder. If the right to vote at any meeting is challenged, the
inspectors of election, or person presiding thereat, shall require such list
of shareholders to be produced as evidence of the right of the persons
challenged to vote at such meeting, and all persons who appear from such list
to be shareholders entitled to vote thereat may vote at such meeting.
Section 1.08. Proxies. Every shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent without a meeting
may authorize another person or persons to act for him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-
fact. No proxy shall be valid after the expiration of eleven months from the
date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the shareholder executing it, except as
otherwise provided in this section.
The authority of the holder of a proxy to act shall not be revoked
by the incompetence or death of the shareholder who executed the proxy
unless, before the authority is exercised, written notice of an adjudication
of such incompetence or of such death is received by the corporate officer
responsible for maintaining the list of shareholders.
Except when other provision shall have been made by written
agreement between the parties, the record holder of shares which he holds as
pledgee or otherwise as security or which belong to another, shall issue to
the pledgor or to such owner of such shares, upon demand therefor and payment
of necessary expenses thereof, a proxy to vote or take other action thereon.
A shareholder shall not sell his vote or issue a proxy to vote to
any person for any sum of money or anything of value, except as authorized in
this section and Section 620 of the Business Corporation Law.
A proxy which is entitled "irrevocable proxy" and which states that
it is irrevocable, is irrevocable when it is held by any of the following or
a nominee of any of the following:
(1) A Pledgee;
(2) A person who has purchased or agreed to purchase the shares;
(3) A creditor or creditors of the Corporation who extend or
continue credit to the Corporation in consideration of the
proxy if the proxy states that it was given in consideration
of such extension or continuation of credit, the amount
thereof, and the name of the person extending or continuing
credit;
(4) A person who has contracted to perform services as an officer
of the Corporation, if a proxy is required by the contract of
employment, if the proxy states that it was given in
consideration of such contract of employment, the name of the
employee and the period of employment contracted for;
(5) A person designated by or under an agreement under paragraph
(a) of said Section 620.
Notwithstanding a provision in a proxy, stating that it is
irrevocable, the proxy becomes revocable after the pledge is redeemed, or the
debt of the Corporation is paid, or the period of employment provided for in
the contract of employment has terminated, or the agreement under paragraph
(a) of said Section 620 has terminated; and, in a case provided for in
subparagraph (3) or (4) above, becomes revocable three years after the date
of the proxy or at the end of the period, if any, specified therein,
whichever period is less, unless the period of irrevocability is renewed from
time to time by the execution of a new irrevocable proxy as provided in this
section. This paragraph does not affect the duration of a proxy under the
second paragraph of this section.
A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the existence of
the provision unless the existence of the proxy and its irrevocability is
noted conspicuously on the face or back of the certificate representing such
shares.
Section 1.09. Selection and Duties of Inspectors. The Board of
Directors, in advance of any shareholders' meeting, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors
are not so appointed, the person presiding at a shareholders' meeting may,
and on the request of any shareholder entitled to vote thereat shall appoint
one or more inspectors. In case any person appointed fails to appear or act,
the vacancy may be filled by appointment made by the Board of Directors in
advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and
the voting power of each, the shares represented at the meeting, the
existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all shareholders. On request
of the person presiding at the meeting or any shareholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them. Any report or certificate made by them shall be prima facie
evidence of the facts stated and of the vote as certified by them.
Unless appointed by the Board of Directors or requested by a
shareholder, as above provided in this section, inspectors shall be dispensed
with at all meetings of shareholders.
Section 1.10. Qualification of Voters. Every shareholder of
record shall be entitled at every meeting of shareholders to one vote for
every share standing in his name on the record of shareholders, except as
expressly provided otherwise in this section and except as otherwise
expressly provided in the Certificate of Incorporation of the Corporation.
Treasury shares and shares held by another domestic or foreign
corporation of any type or kind, if a majority of the shares entitled to vote
in the election of directors of such other corporation is held by the
Corporation, shall not be shares entitled to vote or to be counted in
determining the total number of outstanding shares.
Shares held by an administrator, executor, guardian, conservator,
committee, or other fiduciary, except a trustee, may be voted by him, either
in person or by proxy, without transfer of such shares into his name. Shares
held by a trustee may be voted by him, either in person or by proxy, only
after the shares have been transferred into his name as trustee or into the
name of his nominee.
Shares held by or under the control of a receiver may be voted by
him without the transfer thereof into his name if authority so to do is
contained in an order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, or a nominee of the pledgee.
Redeemable shares which have been called for redemption shall not
be deemed to be outstanding shares for the purpose of voting or determining
the total number of shares entitled to vote on any matter on and after the
date on which written notice of redemption has been sent to holders thereof
and a sum sufficient to redeem such shares has been deposited with a bank or
trust company with irrevocable instruction and authority to pay the
redemption price to the holders of the shares upon surrender of certificates
therefor.
Shares standing in the name of another domestic or foreign
corporation of any type or kind may be voted by such officer, agent or proxy
as the by-laws of such corporation may provide, or, in the absence of such
provision, as the board of directors of such corporation may determine.
If shares area registered on the record of shareholders of the
Corporation in the name of two or more persons, whether fiduciaries, members
of a partnership, joint tenants, tenants in common, tenants by the entirety
or otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, unless the secretary of the Corporation is given
written notice to the contrary and is furnished with a copy of the instrument
or order appointing them or creating the relationship wherein it is so
provided, their acts with respect to voting shall have the following effect:
(1) If only one votes, the vote shall be accepted by the
Corporation as the vote of all;
(2) If more than one vote, the act of the majority so voting shall
be accepted by the Corporation as the vote of all;
(3) If more than one vote, but the vote is equally divided on any
particular matter, the vote shall be accepted by the Corporation as a
proportionate vote of the shares; unless the Corporation has evidence, on the
record of shareholders or otherwise, that the shares are held in a fiduciary
capacity. Nothing in this paragraph shall alter any requirement that the
exercise of fiduciary powers be by act of a majority, contained in any law
applicable to such exercise of powers (including Section 10-10.7 of the
Estates, Powers and Trusts Law of the State of New York);
(4) When shares as to which the vote is equally divided are
registered on the record of shareholders of the Corporation in the name of,
or have passed by operation of law or by virtue of any deed of trust or other
instrument to two or more fiduciaries, any court having jurisdiction of their
accounts, upon petition by any of such fiduciaries or by any party in
interest, may direct the voting of such shares for the best interest of the
beneficiaries. This paragraph shall not apply in any case where the
instrument or order of the court appointing fiduciaries shall otherwise
direct how such shares shall be voted; and
(5) If the instrument or order furnished to the Secretary of the
Corporation shows that a tenancy is held in unequal interests, a majority or
equal division for the purposes of this paragraph shall be a majority or
equal division in interest.
Notwithstanding the foregoing paragraphs of this section, the
Corporation shall be protected in treating the persons in whose names shares
stand on the record of shareholders as the owners thereof for all purposes.
Section 1.11. Vote of Shareholders. Directors shall be elected by
a plurality of the votes cast at a meeting of shareholders by the holders of
shares entitled to vote in the election. Whenever any corporate action,
other than the election of directors, is to be taken by vote of the
shareholders, it shall, except as otherwise required by the Business
Corporation Law or by the Certificate of Incorporation of the Corporation, be
authorized by a majority of the votes cast at a meeting of shareholders by
the holders of shares entitled to vote thereon.
The vote upon any question before any shareholders' meeting need
not be by ballot.
Section 1.12. Written Consent of Shareholders. Whenever
shareholders are required or permitted to take any action by vote, such
action may be taken without a meeting on written consent, setting forth the
action so taken, signed by the holders of all outstanding shares entitled to
vote thereon. This paragraph shall not be construed to alter or modify the
provisions of any section of the Business Corporation Law or any provision in
the Certificate of Incorporation of the Corporation not inconsistent with the
Business Corporation Law under which the written consent of the holders of
less than all outstanding shares is sufficient for corporate action.
Written consent thus given by the holders of all outstanding shares
entitled to vote shall have the same effect as a unanimous vote of
shareholders.
ARTICLE II
Directors
Section 2.01. Management of Business; Qualifications of Directors.
The business of the Corporation shall be managed under the direction of its
Board of Directors. Each member of the Board of Directors shall be at least
eighteen years of age.
Directors need not be stockholders.
The Board of Directors, in addition to the powers and authority
expressly conferred upon it by statute, by the Certificate of Incorporation
of the Corporation, by these By-Laws and otherwise, is hereby empowered to
exercise all such powers as may be exercised by the Corporation, except as
expressly provided otherwise by the Constitution and statutes of the State of
New York, by the Certificate of Incorporation of the Corporation and by these
By-Laws.
Section 2.02. Number. The number of directors which shall
constitute the entire Board of Directors shall be eight, but this number may
be increased and subsequently again increased or decreased by an amendment to
these By-Laws, except that the number shall never be less than three nor more
than nine and that no decrease shall shorten the term of any incumbent
director.
Section 2.03. Election and Term. At each annual meeting of
shareholders, directors shall be elected to hold office until the next annual
meeting, subject to the provisions of Section 2.05 hereof. Each director
shall hold office until the expiration of the term for which he is elected,
and until his successor has been elected and qualified.
Section 2.04. Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board of Directors, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, if any, or if no time is specified
therein, then upon receipt of such notice by the addressee; and, unless
otherwise provided therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 2.05. Removal of Directors. Any or all of the directors
may be removed at any time (a) for cause by vote of the shareholders or by
action of the Board of Directors or (b) without cause by vote of the
shareholders, except as expressly provided otherwise by Section 706 of the
Business Corporation Law.
Section 2.06. Newly Created Directorships and Vacancies. Newly
created directorships resulting from an increase in the number of directors
and vacancies occurring in the Board of Directors for any reason except the
removal of directors without cause may be filled by vote of the Board of
Directors. If the number of directors then in office is less than a quorum,
such newly created directorships and vacancies may be filled by vote of a
majority of the directors then in office. The Board of Directors shall fill
vacancies occurring in the Board of Directors by reason of the removal of
directors without cause.
A director elected to fill a vacancy shall hold office until the
next meeting of shareholders at which the election of directors is in the
regular order of business, and until his successor has been elected and
qualified.
Section 2.07. Quorum and Vote of Directors. At all meetings of
the Board of Directors, a majority of the entire Board of Directors shall be
necessary and sufficient to constitute a quorum for the transaction of
business. The vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, shall be the act of the Board of
Directors, except as expressly provided otherwise in these By-Laws and by the
statutes of the State of New York.
A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting of the Board of Directors to another time
and place. Notice of any adjournment need not be given if such time and
place are announced at the meeting.
Section 2.08. Annual Meeting. The newly elected Board of
Directors shall meet immediately following the adjournment of the annual
meeting of shareholders in each year at the same place and no notice of such
meeting shall be necessary.
Section 2.09. Regular Meetings. Regular meetings of the Board of
Directors may be held at such times and places as shall from time to time be
fixed by the Board of Directors and no notice thereof shall be necessary.
Section 2.10. Special Meetings. Special meetings may be called at
any time by the President, or by resolution of the Board of Directors.
Special meetings shall be held at such places as shall be fixed by the person
or persons calling the meeting and stated in the notice or waiver of notice
of the meeting.
Special meetings of the Board of Directors shall be held upon
notice to the directors. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice whether before or after
the meeting, or who attends the meeting without protesting, prior thereto or
at its commencement, the lack of notice to him.
Unless waived, notice of each special meeting of the Board of
Directors, stating the time and place of the meeting, shall be given to each
director by delivered letter, by telegram or by personal communication either
over the telephone or otherwise, in each such case not later than the third
day prior to the meeting, or by mailed letter deposited in the United States
mail with postage thereon prepaid not later than the seventh day prior to the
meeting. Notices of special meetings of the Board of Directors and waivers
thereof need not state the purpose or purposes of the meeting.
Section 2.11. Telephonic Meetings. A member of the Board of
Directors or any committee thereof may participate in a meeting of the Board
of Directors or of such committee by means of a conference telephone or
similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time, and participation in a meeting
by such means shall constitute presence in person at such meeting.
Section 2.12. Compensation. Directors shall receive such fixed
sums and expenses of attendance for attendance at each meeting of the Board
of Directors or of any committee and such salary as may be determined from
time to time by the Board of Directors; provided that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2.13(a). Committees. The Board of Directors, by
resolution adopted by a majority of the entire Board of Directors, may
designate from among its members an Executive Committee and other committees,
each consisting of three or more directors, and each of which, to the extent
provided in the resolution, shall have all the authority of the Board of
Directors, except that no such committee shall have authority as to the
following matters:
(a) The submission to shareholders of any action that needs
shareholders' approval under the Business Corporation Law.
(b) The filling of vacancies in the Board of Directors or in any
committee.
(c) The fixing of compensation of the directors for serving on the
Board of Directors or on any committee.
(d) The amendment or repeal of the By-Laws, or the adoption of new
By-Laws.
(e) The amendment or repeal of any resolution of the Board of
Directors which by its terms shall not be so amendable or
repealable.
The Board of Directors may designate one or more directors as
alternate members of any such committee, who may replace any absent member or
members at any meeting of such committee. Each such committee shall serve at
the pleasure of the Board of Directors.
Regular meetings of any such committee shall be held at such times
and places as shall from time to time be fixed by such committee and no
notice thereof shall be necessary. Special meetings may be called at any
time by any officer of the Corporation or any member of such committee.
Notice of each special meeting of each such committee shall be given (or
waived) in the same manner as notice of a special meeting of the Board of
Directors. A majority of the members of any such committee shall constitute
a quorum for the transaction of business and the act of a majority of the
members present at the time of the vote, if a quorum is present at such time,
shall be the act of the committee.
Section 2.13(b). Audit Committee. There shall be an Audit
Committee of the Board of Directors which shall serve at the pleasure of the
Board of Directors and be subject to its control. The Committee shall have
at least three members, two of whom shall be independent outside directors.
Members shall be appointed by the Chairman, subject to approval of the Board.
The Committee shall recommend to the Board of Directors the appointment or
discharge of the Corporation's independent auditors, shall review and approve
the scope and plan of the annual audit, shall review the results of such
audit, and shall perform such other duties as may be lawfully delegated to it
from time to time by the Board of Directors.
Section 2.13(c). Executive Compensation Committee. There shall be
an Executive Compensation Committee of the Board of Directors which will
serve at the pleasure of the Board of Directors and be subject to its
control. The Committee shall have at least three members, all of whom shall
be independent outside directors appointed by the Chairman, subject to the
approval of the Board of Directors. The Committee shall approve the
compensation of the executive officers of the company, and shall have such
other duties as may be lawfully delegated to it from time to time by the
Board of Directors.
Section 2.14. Interested Directors. No contract or other
transaction between the Corporation and one or more of its directors, or
between the Corporation and any other corporation, firm, association or other
entity in which one or more of the Corporation's directors are directors or
officers, or have a substantial financial interest, shall be either void or
voidable for this reason alone or by reason alone that such director or
directors are present at the meeting of the Board of Directors, or of a
committee thereof, which approves such contract or transaction, or that his
or their votes are counted for such purpose:
(1) If the material facts as to such director's interest in such
contract or transaction and as to any such common
directorship, officership or financial interest are disclosed
in good faith or known to the Board of Directors or committee,
and the Board of Directors or committee approves such contract
or transaction by a vote sufficient for such purpose without
counting the vote of such interested director or, if the votes
of the disinterested directors are insufficient to constitute
an act of the Board of Directors as defined in Section 708 of
the Business Corporation Law, by unanimous vote of the
disinterested directors; or
(2) If the material facts as to such director's interest in such
contract or transaction and as to any such common
directorship, officership or financial interest are disclosed
in good faith or known to the shareholders entitled to vote
thereon, and such contract or transaction is approved by vote
of such shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which approves such contract or transaction.
ARTICLE III
Officers
Section 3.01. Election or Appointment; Number. The officers of
the Corporation shall be elected or appointed by the Board of Directors. The
officers shall be a President, a Secretary, a Treasurer, and such number of
Vice-Presidents, Assistant Secretaries and Assistant Treasurers, and such
other officers, as the Board of Directors may from time to time determine.
Any person may hold two or more offices at the same time, except the offices
of President and Secretary. Any officer may, but no officer need, be chosen
from among the Board of Directors.
Section 3.02. Term. Subject to the provisions of Section 3.03
hereof, all officers shall be elected or appointed to hold office for the
term for which he is elected or appointed or until his death and until his
successor has been elected or appointed and qualified.
The Board of Directors may require any officer to give security for
the faithful performance of his duties.
Section 3.03. Removal. Any officer elected or appointed by the
Board of Directors may be removed by the Board of Directors with or without
cause.
The removal of an officer without cause shall be without prejudice
to his contract rights, if any. The election or appointment of an officer
shall not of itself create contract rights.
Section 3.04. Authority. The President shall be the chief
executive officer of the Corporation and shall direct the policy of the
Corporation on behalf of the Board of Directors. The other officers shall
have the authority, perform the duties and exercise the powers in the
management of the Corporation usually incident to the offices held by them,
respectively, and/or such other authority duties and powers as may be
assigned to them from time to time by the Board of Directors or the
President.
ARTICLE IV
Capital Stock
Section 4.01. Certificates of Stock. Certificates representing
shares of the stock of the Corporation shall be in such form as shall be
approved by the Board of Directors. Every certificate shall be signed by the
President and the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer and sealed with the seal of the Corporation. Such seal
may be a facsimile engraved or printed. There shall be entered upon the
stock books of the Corporation the number of each certificate issued, the
name of the person owning the shares represented thereby, the number of
shares, and the date of issuance thereof.
Section 4.02. Transfer of Stock. A stock book shall be kept at
the principal office of the Corporation containing the names, alphabetically
arranged, of all persons who are stockholders of the Corporation showing
their places of residence, the number of shares of stock held by them
respectively, the time when they respectively became owners thereof, and the
amount paid thereon. Transfers of shares of the stock of the Corporation
shall be made only on the books of the Corporation by the holder of record
thereof, or by his attorney thereunto duly authorized by a power of attorney
executed in writing and filed with the Secretary, and upon the surrender of
the certificate or certificates for such shares properly endorsed and
accompanied by all the necessary Federal and State stock transfer tax stamps.
No stockholder, however, shall be entitled to any transfer of his stock in
violation of any restrictions lawfully applicable thereto.
Section 4.03. Registered Holders. The Corporation shall be
entitled to treat and shall be protected in creating the persons in whose
names shares or any warrants, rights or options stand on the record of
shareholders, warrant holders, rights holders or option holders, as the case
may be, as the owners thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, any such share,
warrant, right or option on the part of any other person, whether or not the
Corporation shall have notice thereof, except as expressly provided otherwise
by the statutes of the State of New York.
Section 4.04. New Certificates. The Corporation may issue a new
certificate for shares in the place of any certificate theretofore issued by
it, alleged to have been lost or destroyed, and the Board of Directors may,
in its discretion, require the owner of the lost or destroyed certificate, or
his legal representatives, to give the Corporation a bond sufficient (in the
judgment of the directors) to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss or destruction of
any such certificate or the issuance of such new certificate. A new
certificate may be issued without requiring any bond when, in the judgment of
the directors, it is proper so to do.
ARTICLE V
Financial Notices to Shareholders
Section 5.01. Dividends. When any dividend is paid or any other
distribution is made, in whole or in part, from sources other than earned
surplus, it shall be accompanied by a written notice (a) disclosing the
amounts by which such dividend or distribution affects stated capital,
capital surplus and earned surplus, or (b) if such amounts are not
determinable at the time of such notice, disclosing the approximate effect of
such dividend or distribution upon stated capital, capital surplus and earned
surplus and stating that such amounts are not yet determinable.
Section 5.02. Share Distribution and Changes. Every distribution
to shareholders of shares, whether certificated or uncertificated, or a
change of shares which affects stated capital, capital surplus or earned
surplus shall be accompanied by a written notice (a) disclosing the amounts
by which such distribution or change affects stated capital, capital surplus
and earned surplus, or (b) if such amounts are not determinable at the time
of such notice, disclosing the approximate effect of such distribution or
change upon stated capital, capital surplus and earned surplus and stating
that such amounts are not yet determinable.
When issued shares are changed in any manner which affects stated
capital, capital surplus or earned surplus, and no distribution to
shareholders of any shares, whether certificated or uncertificated, resulting
from such change is made, disclosure of the effect of such change upon the
stated capital, capital surplus and earned surplus shall be made in the next
financial statement covering the period in which such change is made that is
furnished by the Corporation to holders of shares of the class or series so
changed or, if practicable, in the first notice of dividend or share
distribution or change that is furnished to such shareholders between the
date of the change of shares and the next such financial statement, and in
any event within six months of the date of such change.
Section 5.03. Cancellation of Reacquired Shares. When reacquired
shares other than converted shares are cancelled, the stated capital of the
Corporation is thereby reduced by the amount of stated capital then
represented by such shares plus any stated capital not theretofore allocated
to any designated class or series which is thereupon allocated to the shares
cancelled. The amount by which stated capital has been reduced by
cancellation of reacquired shares during a stated period of time shall be
disclosed in the next financial statement covering such period that is
furnished by the Corporation to all its shareholders or, if practicable, in
the first notice of dividend or share distribution that is furnished to the
holders of each class or series of its shares between the end of the period
and the next such financial statement, and in any event to all its
shareholders within six months of the date of the reduction of capital.
Section 5.04. Reduction of Stated Capital. When a reduction of
stated capital has been effected under Section 516 of the Business
Corporation Law, the amount of such reduction shall be disclosed in the next
financial statement covering the period in which such reduction is made that
is furnished by the Corporation to all its shareholders or, if practicable,
in the first notice of dividend or share distribution that is furnished to
the holders of each class or series of its shares between the date of such
reduction and the next such financial statement, and in any event to all its
shareholders within six months of the date of such reduction.
Section 5.05. Application of Capital Surplus to Elimination of a
Deficit. The Corporation may apply any part or all of its capital surplus to
the elimination of any deficit in the earned surplus account, upon approval
by vote of the shareholders. The application of capital surplus to the
elimination of a deficit in the earned surplus account shall be disclosed in
the next financial statement covering the period in which such elimination is
made that is furnished by the Corporation to all its shareholders or, if
practicable, in the first notice of dividend or share distribution that is
furnished to holders of each class or series of its shares between the date
of such elimination and the next such financial statement, and in any event
to all its shareholders within six months of the date of such action.
Section 5.06. Conversion of Shares. Should the Corporation issue
any convertible shares, then, when shares have been converted, they shall be
cancelled and disclosure of the conversion of shares during a stated period
of time and its of fact, if any, upon stated capital shall be made in the
next financial statement covering such period that is furnished by the
Corporation to all its shareholders or, if practicable, in the first notice
of dividend or share distribution that is furnished to the holders of each
class or series of its shares between the end of such period and the next
such financial statement, and in any event to all its shareholders within six
months of the date of the conversion of shares.
ARTICLE VI
Miscellaneous
Section 6.01. Offices. The principal office of the Corporation
shall be in The City of Albany, County of Albany, State of New York. The
Corporation may also have offices at other places1 within and/or without the
State of New York.
Section 6.02. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its incorporation and the
words "Corporate Seal New York" provided, that the form of such seal shall be
subject to alteration from time to time by the Board of Directors.
Section 6.03. Checks. All checks or demands for money shall be
signed by such person or persons as the Board of Directors may from time to
time determine.
Section 6.04. Fiscal Year. The fiscal year of the Corporation
shall begin the first day of October in each year, and shall end on the
thirtieth day of September of such year.
Section 6.05. Books and Records. The Corporation shall keep
correct and complete books and records of account and shall keep minutes of
the proceedings of its shareholders, Board of Directors and each committee
thereof, if any, and shall keep at the office of the Corporation in the State
of New York or at the office of its transfer agent or registrar in the State
of New York, a record containing the names and addresses of all shareholders,
the number and class of shares held by each and the dates when they
respectively became the owners of record thereof. Any of the foregoing
books, minutes or records may be in written form or in any other form capable
of being converted into written form within a reasonable time.
Section 6.06. Duty of Directors. A director shall perform his
duties as a director, including his duties as a member of any committee of
the Board of Directors upon which he may serve, in good faith and with that
degree of care which an ordinarily prudent person in a like position would
use under similar circumstances. In performing his duties, a director shall
be entitled to rely on information, opinions, reports, or statements
including financial statements and other financial data, in each case
prepared or presented by:
(a) one or more officers or employees of the Corporation or of any
other corporation of which at least fifty percentum of the outstanding shares
of stock entitling the holders thereof to vote for the election of directors
is owned directly or indirectly by the Corporation, whom the director
believes to be reliable and competent in the matters presented
(b) counsel, public accountants or other persons as to matters
which the director believes to be within such person's professional or expert
competence, or
(c) a committee of the Board of Directors upon which he does not
serve, duly designated in accordance with a provision of the Certificate of
Incorporation or these By-Laws as to matters within its designated authority,
which committee the director believes to merit confidence, so long as in so
relying he shall be acting in good faith and with such degree of care which
an ordinarily prudent person in a like position would use under similar
circumstances but he shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such
reliance to be unwarranted. A person who so performs his duties shall have
no liability by reason of being or having been a director of the Corporation.
Section 6.07. Indemnification of Directors and Officers.
(a) The Corporation shall indemnify any person made, or threatened
to be made, a party to an action or proceeding (other than one by or in the
right of the Corporation to procure a judgment in its favor), whether civil
or criminal, including an action by or in the right of any other corporation
of any type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, which any Director or
Officer of the Corporation served in any capacity at the request of the
Corporation, by reason of the fact that he, his testator or intestate, was a
Director of the Corporation ("Director"), or Officer of the Corporation
appointed or elected by the Board of Directors ("Officer"), or served such
other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise in any capacity, against judgments, fines, amounts paid
in settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal
therein, to the maximum extent permitted and in the manner prescribed by the
Business Corporation law.
(b) The Corporation shall indemnify any person made, or threatened
to be made, a party to an action by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he, his testator
or intestate, is or was a Director or Officer of the Corporation, or is or
was serving at the request of the Corporation as a Director or Officer of any
other corporation of any type or kind, domestic or foreign, of any
partnership, joint venture, trust, employee benefit plan or other enterprise,
against amounts paid in settlement and reasonable expenses, including
attorneys' fees, actually and necessarily incurred by him in connection with
the defense or settlement of such action, or in connection with an appeal
therein, to the maximum extent permitted and in the manner prescribed by the
Business Corporation Law.
(c) Expenses incurred by any party entitled to indemnification
under this Section 6.07 in defending a civil or criminal action or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action or proceeding to the maximum extent permitted and in the manner
prescribed by the Business Corporation Law.
(d) The Corporation shall pay the expenses (including attorneys'
fees) of any person made a witness in a civil or criminal action or
proceeding, by reason of the fact that he is or was a Director or Officer of
the Corporation, or serves or served any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan, or other enterprise in any capacity at the request of the
Corporation, subject to any limitations required by the Business Corporation
Law.
(e) The Corporation shall pay the expenses (including attorneys'
fees) of any Director or Officer of the Corporation incurred in prosecuting
or defending an action or proceeding to enforce any rights to indemnification
or advancement of expenses granted under these By-laws or otherwise, subject
to any limitations required by the Business Corporation Law.
(f) The foregoing provisions of this section shall be deemed to be
a contract between the Corporation and each Director and Officer of the
Corporation who serves in such capacity at any time while this section and
the relevant provisions of the Business Corporation Law are in effect, and
any repeal or modification of this section or such provisions of the Business
Corporation Law shall not affect any rights or obligations then existing with
respect to any state of facts then or theretofore existing as it relates to
any action or proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts; provided, however,
that the right of indemnification provided in this section shall not be
deemed exclusive of any other rights to which any Director or Officer of the
Corporation may now be or hereafter become entitled apart from this section,
whether by a resolution of shareholders, a resolution of Directors, or an
agreement providing for such indemnification. Subject to the foregoing,
wherever this section refers to the Business Corporation Law, it shall mean
the Business Corporation Law of the State of New York, as the same exists or
may hereafter be amended. The rights of a Director or Officer hereunder
shall continue after such person has ceased to be a Director or Officer and
shall inure to the benefit of such person's heirs, executors, administrators
and personal representatives.
Section 6.08. When Notice or Lapse of Time Unnecessary; Notices
Dispensed with when Delivery Is Prohibited. Whenever, under the Business
Corporation Law or the Certificate of Incorporation of the Corporation or
these By-Laws or by the terms of any agreement or instrument, the Corporation
or the Board of Directors or any committee thereof is authorized to take any
action after notice to any person or persons or after the lapse of a
prescribed period of time, such action may be taken without notice and
without the lapse of such period of time, if at any time before or after such
action is completed the person or persons entitled to such notice or entitled
to participate in the action to be taken or, in the case of a shareholder, by
his attorney-in-fact, submit a signed waiver of notice of such requirements.
Whenever any notice or communication is required to be given to any
person by the Business Corporation Law, the Certificate of Incorporation of
the Corporation or these By-Laws, or by the terms of any agreement or
instrument, or as a condition precedent to taking any corporate action and
communication with such person is then unlawful under any statute of the
State of New York or of the United States or any regulation, proclamation or
order issued under said statutes, then the giving of such notice or
communication to such person shall not be required and there shall be no duty
to apply for license or other permission to do so. Any affidavit,
certificate or other instrument which is required to be made or filed as
proof of the giving of any notice or communication required under the
Business Corporation Law shall, if such notice or communication to any person
is dispensed with under this paragraph, include a statement that such notice
or communication was not given to any person with whom communication is
unlawful. Such affidavit, certificate or other instrument shall be as
effective for all purposes as though such notice or communication had been
personally given to such person.
Whenever any notice or communication is required or permitted to be
given by mail, it shall, except as otherwise expressly provided in the
Business Corporation Law, be mailed to the person to whom it is directed at
the address designated by him for that purpose or, if none is designated, at
his last known address. Such notice or communication given when deposited,
with postage thereon prepaid, in a post office or official depository under
the exclusive care and custody of the United States post office department.
Such mailing shall be by first class mail except where otherwise required by
the Business Corporation Law.
Section 6.09. Entire Board of Directors. As used in these By-
Laws, the term "entire Board of Directors" means the total number of
directors which the Corporation would have if there were no vacancies.
Section 6.10. Amendment of By-Laws. These By-Laws may be amended
or repealed and new By-Laws adopted by the Board of Directors or by vote of
the holders of the shares at the time entitled to vote in the election of any
directors, except that any amendment by the Board changing the number of
directors shall require the vote of a majority of the entire Board of
Directors and except that any By-Law adopted by the Board of Directors may be
amended or repealed by the shareholders entitled to vote thereon as provided
in the Business Corporation Law.
If any By-Law regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set
forth in the notice of the next meeting of shareholders for the election of
directors the By-Law so adopted, amended or repealed together with statement
of the changes made.
Section 6.11. Section Headings and Statutory
References. The headings of the Articles and Sections of these By-Laws have
been inserted for convenience of reference
only and shall not be deemed to be a part of these By-Laws.
ARTICLE VII
Indemnification
A director of this Corporation shall not be personally liable to
the Corporation or its shareholders for damages for any breach of fiduciary
duty as a director, except for liability resulting from a judgment or other
final adjudication adverse to the director; (i) for acts or omissions in bad
faith or which involve intentional misconduct or a knowing violation of the
law, (ii) for any transaction from which the director derived a financial
profit or other advantage to which the director was not legally entitled, or
(iii) under Section 719 of the New York Business Corporation Law.
Exhibit 5(a)
February 3, 1994
First Albany Companies Inc.
41 State Street
Albany, New York 12207
Re: First Albany Companies Inc. - Registration Statement on Form
S-8 relating to the First Albany Companies Inc. Stock Bonus
Plan (the "Registration Statement")
-------------------------------------------------------------
Gentlemen:
In connection with proposed sale of up to 300,000 shares of the
common stock par value $.01 (the "Shares") of First Albany Companies Inc.
(the "Company") pursuant to the First Albany Companies Inc. Stock Bonus Plan
(the "Plan") with respect to which a Registration Statement on Form S-8 has
been prepared for filing with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, I have examined such corporate records, other
documents and questions of law as I considered necessary for the purposes of
this opinion.
I am of the opinion that when:
(a) the applicable provisions of the Securities Act of 1933 and of
State securities of "blue sky" laws shall have been complied with;
(b) the Company's Board of Directors shall have duly authorized
the issue and sale of the Shares; and
(c) the Shares shall have been duly issued and paid for (in an
amount not less than $.01 par value thereof);
the Shares will be legally issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an Exhibit to the
Registration Statement on Form S-8 and to the reference to me under the
caption "Legal Opinion" in the Registration Statement and related Prospectus,
and any amendments thereto, filed or distributed in connection with the Plan.
Very truly yours,
/s/ Michael R. Lindburg
---------------------------
Michael R. Lindburg
Vice President
General Counsel
Exhibit 5(b)
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Date: Dec. 9, 1987 Employer Identification Number:
22-2655304
File Folder Number:
140007386
Person to Contact:
CLIFTON BELNAVIS
FIRST ALBANY COMPANIES INC Contact Telephone Number:
41 STATE STREET (718) 780-4042
ALBANY, NY 12207 Plan Name:
FIRST ALBANY COMPANIES INC
STOCK BONUS PLAN
Plan Number: 001
Dear Applicant:
Based on the information supplied, we have made a favorable
determination on you application identified above. Please keep this letter
in your permanent records.
Continued qualification of the plan will depend on its effect in
operation under its present form. (See section 1.401-1(b)(3) of the Income
Tax Regulations.) The status of the plan in operation will be reviewed
periodically.
The enclosed document describes the impact of Notice 86-13 and some
events that could occur after you receive this letter that would automatically
nullify it without specific notice from us. The document also explains how
operation of the plan may affect afavorable determination letter, and contains
information about filing requirements.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the effect of
other Federal of local statutes.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
This determination letter is applicable for the plan adopted on
July 1, 1987.
If you have any questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/ Eugene D. Alexander
--------------------------
Eugene D. Alexander
District Director
Enclosures:
Publication 794
OPWBP 515
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Date: Feb. 16, 1993 Employer Identification Number:
22-2655304
File Folder Number:
113025130
Person to Contact:
ALLAN FELSEN
FIRST ALBANY COMPANIES INC. Contact Telephone Number:
41 STATE STREET P.O. BOX 52 (516) 683-5395
ALBANY, NY 12201 Plan Name:
FIRST ALBANY COMPANIES INC. STOCK
BONUS PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this letter in your
permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of the Income
Tax Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the
publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the effect of
other federal or local statutes.
This determination applies to plan year(s) beginning after Dec. 31,
1989.
This determination letter is applicable for the amendment(s)
adopted on May 29, 1990.
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the certification
and demonstrations are considered an integral part of this letter.
Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD OR
YOU WILL NOT BE ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE
91-66.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Herbert J. Huff
---------------------------
Herbert J. Huff
District Director
Enclosures
Publication 794
PWBA 515
Exhibit 24(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of First Albany Companies Inc. Stock Bonus Plan on Form S-8 of our report,
dated November 5, 1993, on our audits of the financial statements and the
financial statement schedules of First Albany Companies Inc. and of our
report, dated March 15, 1993, on our audits of the financial statements of
First Albany Companies Inc. Stock Bonus Plan. We also consent to the
reference to our firm under the caption "Experts".
Exhibit 25(a)
CERTIFICATE OF SECRETARY
I, Michael R. Lindburg, hereby certify that I am the duly elected
Secretary of First Albany Companies Inc., a New York Corporation, and further
certify that the following is a true copy of a resolution duly adopted by the
Board of Directors of said corporation at a meeting duly held on the 18th day
of January, 1994, at which a quorum was present and voting, and that the same
has not been repealed or amended.
/s/ Michael R. Lindburg
----------------------------
Michael R. Lindburg
Secretary
Dated: February 2, 1994
RESOLVED, that the preparation and filing of a registration
statement on Form S-8 under the Securities Act of 1933 for the registration
of up to 300,000 shares of the Corporation's Common Stock, $.01 par value,
for issuance and sale pursuant to the First Albany Companies Inc. Stock Bonus
Plan (the "Plan"), be, and hereby is, approved with such changes therein as
the proper officers of the Corporation deem necessary or desirable, and that
each of the President, any Vice President and the Secretary or Assistant
Secretary of the Corporation ("designated officers") be, and they hereby are,
authorized and empowered to execute said registration statement on behalf of
the Corporation and to cause the same to be filed with the Securities and
Exchange Commission (the "Commission"); and
RESOLVED, that designated officers be, and each of them hereby is,
authorized and empowered to execute and file all such instruments and
documents, make all payments and do all such other acts and things, including
the execution and filing of an amendment or amendments to said registration
statement, as such officer may deem necessary or desirable in order to effect
such filing and procure the effectiveness of said registration statement; and
RESOLVED, that, for the purpose of executing the registration
statement and causing the same to be filed with the Commission and of
remedying any deficiencies or making any change with respect thereto by an
appropriate amendment or amendments, the directors and officers of the
Corporation be, and each of them hereby is, authorized and empowered to give
their several powers of attorney to George C. McNamee and Alan P. Goldberg,
or any one of them; and that the power of attorney, in substantially the form
presented to this meeting, be, and it hereby is, approved with such changes
therein as the designated officers, or any one of them, may deem necessary or
desirable; and
RESOLVED, that it is desirable and in the best interest of the
Corporation that its securities be qualified or registered for sale in
various states; that the designated officers be, and each of them hereby is,
authorized to determine the states in which appropriate action shall be taken
to qualify or register for sale all or such part of the securities of this
Corporation to be issued under the Plan as said officers may deem advisable;
that said officers are hereby authorized to perform on behalf of this
Corporation any and all such acts as they may deem necessary or advisable in
order to comply with the applicable laws of any such states, and in
connection therewith to execute and file all requisite papers and documents,
including, but not limited to, applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for service of process;
and the execution by such officers of any such paper or document or the doing
by them of any act in connection with the foregoing matters shall
conclusively establish their authority therefor from this Corporation and the
approval and ratification by this Corporation of the papers and documents so
executed and the action so taken.
