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Registration No. 333-[___]
As filed with the Securities and Exchange Commission on May 23, 2000
- --------------------------------------------------------------------------------
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)
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<S> <C>
New York 22-2655804
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
30 South Pearl Street
Albany, New York 12207
(Address of principal executive offices)
FIRST ALBANY COMPANIES INC.
DEFERRED COMPENSATION PLAN FOR KEY EMPLOYEES
(Full title of Plan)
Stephen P. Wink, Esq.
Senior Vice President and General Counsel
First Albany Companies Inc.
30 South Pearl Street
Albany, New York 12207
(518) 447-8500
(Name, address and telephone number of agent for service)
---------------------------------------
Copies to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
Attention: Susan P. Serota, Esq.
--------------------------
CALCULATION OF REGISTRATION FEE
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===========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share Price Registration Fee(5)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Deferred Compensation Obligations(1) $9,000,000.00 100% $9,000,000.00(4) $2,376.00
Common Stock, par value $.01 per
share 250,000 shares(2) $20.78125(3) $5,195,312.50 $0
===========================================================================================================================
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
1. The Deferred Compensation Obligations are unsecured obligations of First
Albany Companies Inc. to pay deferred compensation in the future in accordance
with the terms of the First Albany Companies Inc. Deferred Compensation Plan For
Key Employees.
2 This Registration Statement shall be deemed to cover additional
securities to be issued in connection with, or as the result of, stock splits,
stock dividends or similar transactions.
3. Pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933,
the proposed maximum offering price per share is based on the reported average
of the high and low prices for First Albany Companies Inc. Common Stock on the
NASDAQ National Market System on May 19, 2000.
4. Estimated solely for purposes of determining the registration fee.
5. Pursuant to Rule 457(i), the registration fee is calculated solely on the
basis of the proposed offering price of the Deferred Compensation Obligations,
which may convert to First Albany Companies Inc. Common Stock at distribution.
<PAGE> 2
PART I
A prospectus setting forth the information required by Part I of Form
S-8 will be sent or given to plan participants as specified by Rule
428(b)(1)(i).
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:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999.
2. Description of the Company's Common Stock, par value $0.01 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.
The securities being registered under this registration statement
consist of (1) obligations (the "Obligations") of the Company to pay
compensation deferred by eligible employees under
2
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the terms of the First Albany Companies Inc. Deferred Compensation Plan For Key
Employees (the "Plan") and (2) shares of Common Stock, par value $0.01 of the
Company with which certain of the Obligations shall be paid upon distribution. A
description of the Company's Common Stock is incorporated by reference in this
Registration Statement pursuant to Item 3 above. A description of the
Obligations follows.
Subject to the provisions of the Plan, an eligible employee (a
"Participant") may enter into an agreement with the Company providing for the
deferral of the payment of a specified portion or amount of compensation payable
by the Company to the Participant. A Participant's deferrals are credited to a
record keeping account maintained by the Company in the name of the Participant.
The Company may, at its discretion, credit the account of a Participant with
Company matching contributions in such amounts and at such times as may be
determined by the Company. Each Participant account will be periodically
adjusted to reflect the investment experience of one or more investment
benchmarks designated under the Plans and selected by the Participant, including
the Company's Common Stock. A Participant will become vested in the amount of
any earnings credited to his or her account, and the amount of any Company
matching contributions, in accordance with the applicable vesting schedule
established by the Company for such purposes. The vested balance credited to a
Participant account will be paid upon the earliest of (i) termination of the
Participant's employment or (ii) the Participant's elected distribution date,
which may be the April 15 following the end of either the 5th, 6th, 7th, 8th,
9th or 10th year following the year the deferral was made. Depending on the
applicable terms of the Plan and the Participant's payment election, payment of
such vested balance may be made in a lump sum or in substantially equal annual
installments ending no later than the April 15 following the end of the 10th
year following the year the deferral was made. Payments of vested balances that
are valued according to the Company Stock investment benchmark shall be made in
shares of Company Common Stock; all other payments shall be made in cash. The
Company reserves the right to accelerate the payment of any Participant's vested
balance in the event of a termination of the Plan. In addition, the Company may
delay the payment of a Participant's vested amounts under certain circumstances,
such as when the Participant has allocated such amounts to a restricted
investment benchmark offered under the Plan or as otherwise provided in the New
York Stock Exchange Subordination Agreement (the "Subordination Agreement") that
each Participant must sign as a condition to participation in the Plan. A
Participant's rights to and under the Obligations cannot be assigned, alienated,
sold, garnished, transferred, pledged or encumbered, except by way of transfer
to the employee's beneficiary or estate upon the Participant's death, pursuant
to the terms of the Plan.
The Obligations are unsecured general obligations of the Company which,
under the terms of the Subordination Agreement, are subordinate in rank to other
unsecured and unsubordinated indebtedness of the Company that may be outstanding
from time to time. No sinking fund has or will be established with respect to
the Obligations. The Obligations are not subject to redemption, in whole or in
part, prior to the payment dates applicable under the Plans and with the
exception of the portion those Obligations that are payable in shares of Common
Stock of the Company, Obligations are not convertible into another security of
the Company. The Company reserves the right to amend or terminate the Plans at
any time, except that no such amendment or termination shall adversely affect
the rights of Participants with respect to amounts deferred prior to such
amendment or termination. In the event a Plan is terminated, the
3
<PAGE> 4
Company may decide, in its sole discretion, to either pay the Obligations as
they come due in accordance with the Participants' initial elections or
accelerate the payment of the Obligations.
Except as stated above, the Obligations do not enjoy the benefit of any
affirmative or negative pledges or covenants by the Company. The Company may
establish a grantor trust to fund the payment of the Obligations, but the
Company retains discretion to determine whether such a trust will be established
and, if so, the amount and timing of any contributions to the trust. The assets
of the trust will remain subject to the claims of the Company's creditors. The
trustee of the trust will be required to administer the trust in accordance with
its terms, but the trustee's obligations and authority are limited to the
amounts which may be held in the trust from time to time and the trustee may be
subject to the direction of the Company with respect to the payment Obligations.
Accordingly, the trustee of the trust does not have any independent obligation
or authority to act on behalf of any Participant or Beneficiary and each
Participant and Beneficiary will be responsible for acting on his or her own
behalf with respect to, among other things, the giving of notices, responding to
requests for consents, waivers or amendments, enforcing covenants and taking
action upon default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered pursuant to this registration
statement has been passed upon for the Company by Stephen P. Wink, Senior Vice
President and General Counsel of the Company, 30 South Pearl Street, Albany, New
York 12207. Mr. Wink is the beneficial owner of shares (and options to purchase
shares) of Common Stock of the Company.
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.
See Exhibit Index attached.
4
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ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(b) That, for the purpose of determining any liability under the
1933 Act, each post-effective amendment to this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof;
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering; and
(d) That, for purposes of determining any liability under the 1933
Act, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 Act that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 1933 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Albany, and the State of New York, on the 10th day of May, 2000.
FIRST ALBANY COMPANIES INC.
By: /s/ George C. McNamee
---------------------
George C. McNamee,
Chairman of the Board
6
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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 $9,000,000.00 principle amount
of Obligations and 250,000 shares of Common Stock, par value $.01, 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.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 10th day of May, 2000:
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/ Steven R. Jenkins Chief Financial Officer
- --------------------- (Principal Financial and
Steven R. Jenkins Accounting Officer)
/s/ Peter Barton Director
- ----------------
Peter Barton
/s/ Walter Fiederowicz Director
- ----------------------
Walter Fiederowicz
/s/ Hugh A. Johnson, Jr. Director and Senior Vice
- ------------------------ President
Hugh A. Johnson, Jr.
/s/ Daniel V. McNamee, III Director
- --------------------------
Daniel V. McNamee, III
/s/ Charles L. Schwager Director
- -----------------------
Charles L. Schwager
/s/ Benaree P. Wiley Director
- --------------------
Benaree P. Wiley
8
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FIRST ALBANY COMPANIES INC.
--------------
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4(a) - Amended and Restated Certificate of Incorporation of First
Albany Companies Inc. (Designated in Form 10-Q filed for the
quarter ended June 26, 1998 as Exhibit 3(i)).*
4(b) - Amended and Restated Bylaws of First Albany Companies Inc.
(Designated in Form 10-Q filed for the quarter ended June 26,
1998 as Exhibit 3(ii)).*
4(c) - Specimen Certificate of Common Stock, par value $.01 per
share, (Filed as Exhibit No. 4 to Registration Statement No.
33-1353).*
4(d) - First Albany Companies Inc. Deferred Compensation Plan For
Key Employees.
5(a) - Opinion of the Company's General Counsel as to the legality
of securities offered under the Plan.
23(a) - Consent of PricewaterhouseCoopers LLP.
23(b) - Consent of Counsel (contained in the Opinion of the
Company's General Counsel, Exhibit 5(a) hereto).
24(b) - Power of Attorney (set forth on the signature page hereof).
- --------------------------------
* Incorporated by reference.
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EXHIBIT 4(d)
FIRST ALBANY COMPANIES INC.
DEFERRED COMPENSATION PLAN
FOR KEY EMPLOYEES
EFFECTIVE JANUARY 1, 1998
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2000
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TABLE OF CONTENTS
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Page
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Article 1
Definitions.....................................................................................................5
Article 2
Eligibility, Selection, Enrollment.............................................................................10
2.01 Selection by Committee..................................................................................11
2.02 Enrollment Requirements.................................................................................11
2.03 Commencement of Participation........................................................................11
2.04 Subsequent Elections.................................................................................11
2.05 Termination of Participation and/or Deferrals........................................................11
Article 3
Participant Deferrals, Commitments, Company Match, Investment Adjustments, Taxes and Vesting...................12
3.01 Participant Deferrals................................................................................12
(a) Deferral Election..........................................................................12
(b) Minimum Deferral...........................................................................12
(i) Minimum.........................................................................12
(ii) Short Plan Year.................................................................13
(c) Maximum Deferral...........................................................................13
(d) Deferral Designations......................................................................13
(i) Base Annual Salary..............................................................13
(ii) Bonus Amounts...................................................................13
(iii) Commission Payouts..............................................................13
3.02 Annual Company Match.................................................................................14
3.03 Selection of Investment Benchmarks...................................................................14
3.04 Adjustment of Plan Accounts..........................................................................14
3.05 FICA and Other Taxes.................................................................................15
(a) Annual Deferral Amounts....................................................................15
(b) Distributions..............................................................................15
3.06 Vesting..............................................................................................15
(a) Forfeiture of Unvested Amounts.............................................................15
(b) Vesting of Amounts.........................................................................15
(c) Vesting After Covered Termination..........................................................15
(d) Vesting Upon Plan Termination..............................................................16
(e) Acceleration of Vesting by Committee.......................................................16
</TABLE>
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<TABLE>
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Article 4
Suspension of Deferrals........................................................................................16
4.01 Unforeseeable Financial Emergencies..................................................................16
4.02 Disability...........................................................................................16
4.03 Resumption of Deferrals..............................................................................16
Article 5
Distribution of Plan Accounts..................................................................................16
5.01 Distribution Elections...............................................................................16
5.02 Early Distribution of Aggregate Vested Balance.......................................................17
5.03 Withdrawal in the Event of an Unforeseeable Financial Emergency......................................17
5.04 Distribution Restrictions............................................................................17
5.05 Valuation of Plan Accounts Pending Distribution......................................................18
5.06 Form of Payment......................................................................................18
Article 6
Survivor Benefit...............................................................................................19
6.01 Survivor Benefit.....................................................................................19
6.02 Payment of Survivor Benefit..........................................................................19
Article 7
Disability Benefit.............................................................................................19
7.01 Disability Benefit...................................................................................19
Article 8
Beneficiary Designation........................................................................................19
8.01 Beneficiary..........................................................................................19
8.02 Beneficiary Designation; Change; Spousal Consent.....................................................19
8.03 Acknowledgment.......................................................................................20
8.04 No Beneficiary Designation...........................................................................20
8.05 Doubt as to Beneficiary..............................................................................20
8.06 Discharge of Obligations.............................................................................20
Article 9
Leave of Absence...............................................................................................20
9.01 Paid Leave of Absence................................................................................20
9.02 Unpaid Leave of Absence..............................................................................20
</TABLE>
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Article 10
Termination, Amendment or Modification.........................................................................21
10.01 Termination..........................................................................................21
10.02 Amendment............................................................................................21
10.03 Effect of Payment....................................................................................21
Article 11
Administration.................................................................................................22
11.01 Committee Duties.....................................................................................22
11.02 Agents...............................................................................................22
11.03 Binding Effect of Decisions..........................................................................22
11.04 Indemnity of Committee...............................................................................22
11.05 Employer Information.................................................................................22
Article 12
Other Benefits and Agreements..................................................................................23
Article 13
Claims Procedures..............................................................................................23
13.01 Presentation of Claim................................................................................23
13.02 Notification of Decision.............................................................................23
13.03 Review of a Denied Claim.............................................................................24
13.04 Decision on Review...................................................................................24
13.05 Arbitration..........................................................................................24
Article 14
Trust..........................................................................................................25
14.01 Establishment of the Trust...........................................................................25
14.02 Interrelationship of the Plan and the Trust..........................................................25
14.03 Distributions From the Trust.........................................................................25
Article 15
Miscellaneous..................................................................................................25
15.01 Status of Plan.......................................................................................25
15.02 Unsecured General Creditor...........................................................................25
15.03 Employer's Liability.................................................................................25
15.04 Nonassignability.....................................................................................26
</TABLE>
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15.05 Not a Contract of Employment.........................................................................26
15.06 Furnishing Information...............................................................................26
15.07 Terms................................................................................................26
15.08 Captions.............................................................................................26
15.09 Governing Law........................................................................................26
15.10 Notice...............................................................................................26
15.11 Successors...........................................................................................27
15.12 Spouse's Interest....................................................................................27
15.13 Validity.............................................................................................27
15.14 Incompetent..........................................................................................27
15.15 Distribution in the Event of Taxation................................................................27
15.16 Insurance............................................................................................28
15.17 Legal Fees To Enforce Rights After Change in Control.................................................28
</TABLE>
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FIRST ALBANY COMPANIES INC.
DEFERRED COMPENSATION PLAN
FOR KEY EMPLOYEES
Effective January 1, 1998
Amended and Restated Effective January 1, 2000
PURPOSE
The purpose of this Plan is to provide specified benefits to a
select group of management or highly compensated Employees who contribute
materially to the continued growth, development and future business success of
First Albany Companies Inc. and its subsidiaries, if any, that sponsor this
Plan. This Plan shall be unfunded for tax purposes and for purposes of Title I
of ERISA.
ARTICLE 1
Definitions
For purposes of this Plan, unless otherwise clearly apparent
from the context, the following phrases or terms shall have the meanings
indicated:
1.1 "Aggregate Vested Balance" or "Aggregate Vested Benefit" shall mean,
with respect to the Plan Accounts of any Participant as of a given
date, the sum of the amounts that have become vested under all of the
Participant's Plan Accounts, as adjusted to reflect all applicable
Investment Adjustments and all prior withdrawals and distributions,
in accordance with Article 3 of the Plan and the provisions of the
applicable Enrollment Forms.
1.2 "Amended Annual Election Form" shall mean the Amended Annual Election
Form required by the Committee to be signed and submitted by a
Participant to effect a permitted change in the elections previously
made by the Participant under any Annual Election Form.
1.3 "Amended Distribution Election Form" shall mean the Amended
Distribution Election Form required by the Committee to be signed and
submitted by a Participant to effect a permitted change in the
Distribution Election previously made by the Participant under any
Distribution Election Form.
1.4 "Annual Company Match" shall mean the aggregate amount credited by
the Company to a Participant in respect of a particular Plan Year
under Section 3.02.
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1.5 "Annual Company Match Account" shall mean a Participant's Annual
Company Match for a Plan Year, as adjusted to reflect all applicable
Investment Adjustments and all prior distributions and withdrawals.
1.6 "Annual Deferral Account" shall mean a Participant's Annual
Participant Deferral for a Plan Year, as adjusted to reflect all
applicable Investment Adjustments and all prior distributions and
withdrawals.
1.7 "Annual Deferral Agreement" shall mean the Annual Deferral Agreement
required by the Committee to be signed and submitted by a Participant
in connection with the Participant's deferral election with respect
to a given Plan Year.
1.8 "Annual Election Form" shall mean the Annual Election Form required
by the Committee to be signed and submitted by a Participant in
connection with the Participant's deferral election with respect to a
given Plan Year.
1.9 "Annual Participant Deferral" shall mean the aggregate amount
deferred by a Participant in respect of a particular Plan Year under
Section 3.01.
1.10 "Base Annual Salary" shall mean the annual base salary payable to a
Participant by an Employer in cash in respect of services rendered
during a Plan Year, including any Elective Deductions, but excluding
Bonus Amounts, Commission Payouts or other additional incentives or
awards payable to the Participant.
1.11 "Beneficiary" shall mean one or more persons, trusts, estates or
other entities, designated in accordance with Article 10, that are
entitled to receive a Participant's Aggregate Account Balance under
this Plan in the event of the Participant's death.
1.12 "Beneficiary Designation Form" shall mean the Beneficiary Designation
Form or Amended Beneficiary Designation Form last signed and
submitted by a Participant and accepted by the Committee.
1.13 "Board" shall mean the board of directors of the Company.
1.14 "Bonus Amounts" shall mean Discretionary Bonus Amounts and Guaranteed
Bonus Amounts.
1.15 "Change in Control" shall mean the earliest to occur of the following
events:
(a) The consummation of any transaction or series of
transactions as a result of which any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) other than an "Excluded Person" (as hereinafter
defined) has or obtains ownership or control, directly or
indirectly, of fifty percent (50%) or more of the combined
voting power of all securities of the Company or any
successor or surviving corporation of any merger,
consolidation or reorganization involving the Company (the
"Voting Securities"). The term "Excluded Person" means any
one or more of the following: (i) the Company or any
majority-owned
6
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subsidiary of the Company, (ii) an employee benefit plan (or
a trust forming a part thereof) maintained by (A) the
Company or (B) any majority-owned subsidiary of the Company,
(iii) any Person who as of the initial effective date of
this Plan owned or controlled, directly or indirectly, ten
percent (10%) or more of the then outstanding Voting
Securities, or any individual, entity or group that was part
of such a Person;
(b) A merger, consolidation or reorganization involving the
Company as a result of which the holders of Voting
Securities immediately before such merger, consolidation
or reorganization do not immediately following such
merger, consolidation or reorganization own or control,
directly or indirectly, at least fifty percent (50%) of
the Voting Securities in substantially the same proportion
as their ownership or control of the Voting Securities
immediately before such merger, consolidation or
reorganization; or
(c) The sale or other disposition of all or substantially all of
the assets of the Company to any Person (other than a
transfer to a majority-owned subsidiary of the Company).
1.16 "Claimant" shall have the meaning set forth in Section 13.1.
1.17 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
1.18 "Commission Payouts" shall mean the amounts payable to a Participant
by an Employer in cash in respect of services rendered during a Plan
Year under any commission scheme or commission draw arrangement,
including any Elective Deductions, but excluding Bonus Amounts,
stock-related awards and other non-monetary incentives.
1.19 "Committee" shall mean the committee described in Article 11.
1.20 "Company" shall mean First Albany Companies Inc., a New York
corporation, and any successor to all or substantially all of its
assets or business.
1.21 "Company Stock" shall mean the common stock, par value $.01 per
share, of the Company.
1.22 "Covered Termination" shall mean the Participant's Termination of
Employment within two (2) years following a Change in Control as a
result of the Participant's resignation for good reason or a
termination by the Participant's Employer without cause. For these
purposes a Participant's resignation for good reason shall mean a
Participant's resignation following (i) a diminution in the
Participant's status, title, position or responsibilities, or an
assignment to the Participant of duties inconsistent with the
Participant's status, title or position other than for cause or (ii)
a reduction of more than ten percent (10%) in the Participant's
aggregate annualized compensation rate solely as a result of a
change adopted unilaterally by the Company. A Participant's
resignation shall not be treated as a resignation for good reason
unless it occurs after
7
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one of the foregoing events and the Participant provides the
Employer with written notice of the event within six (6) months of
the occurrence of the event and within seven (7) days before the
effective date of the Participant's resignation and the Employer
shall not have cured such event prior to such resignation. A
termination by the Participant's Employer without cause shall mean
an involuntary termination of the Participant's employment by
Participant's Employer other than by reason of the Participant's (i)
willful and continued failure to perform the duties of his or her
position after receiving notice of such failure and being given
reasonable opportunity to cure such failure; (ii) willful misconduct
which is demonstrably and materially injurious to the Employer;
(iii) conviction of a felony; or (iv) material breach of applicable
federal or state securities laws, regulations or licensing
requirements or the applicable rules or regulations of any
self-regulatory body. No act or failure to act on the part of a
Participant shall be considered "willful" unless it is done or
omitted to be done in bad faith or without reasonable belief that
the action or omission was in the best interest of the Employer. No
termination shall be considered a termination for cause unless it is
effected by a written notice to the Participant stating in detail
the grounds constituting cause.
1.23 "Disability" shall mean a period of disability during which a
Participant qualifies for total permanent disability benefits under
the Participant's Employer's long-term disability plan, or, if a
Participant does not participate in such a plan, a period of
disability during which the Participant would have qualified for
total permanent disability benefits under such a plan had the
Participant been a participant in such a plan, as determined in the
sole discretion of the Committee. If the Participant's Employer does
not sponsor such a plan, or discontinues to sponsor such a plan,
Disability shall be determined by the Committee in its sole
discretion.
1.24 "Disability Benefit" shall mean the benefit set forth in Article 9.
1.25 "Discretionary Bonus Amounts" shall mean such amounts that are
determined in the sole discretion of an Employer and are payable in
cash to a Participant in respect of services rendered during a Plan
Year under any bonus or incentive plan or arrangement of an Employer,
including any Elective Deductions, but excluding Commission Payouts,
stock-related awards and other non-monetary incentives.
1.26 "Distribution Election" shall mean an election made in accordance
with Section 5.01.
1.27 "Distribution Election Form" shall mean the Distribution Election
Form required by the Committee to be signed and submitted by a
Participant with respect to a Distribution Election.
1.28 "Election Form" shall mean, with respect to any Plan Account, the
Annual Election Form or the Amended Annual Election Form last signed
and submitted by the Participant and accepted by the Committee with
respect to that Plan Account.
1.29 "Elective Deductions" shall mean deductions made from a Participant's
Base Annual Salary, Bonus Amounts and Commission Payouts for amounts
voluntarily deferred or
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contributed by the Participant pursuant to all qualified and
non-qualified compensation deferral plans, including, without
limitation, amounts not included in the Participant's gross income
under Code Sections 125, 402(e)(3) and 402(h), provided, however,
that all such amounts would have been payable in cash to the Employee
had there been no such plan.
1.30 "Employee" shall mean a person who is an employee of any Employer.
1.31 "Employer" shall mean the Company and/or any of its subsidiaries (now
in existence or hereafter formed or acquired) that have been selected
by the Board to participate in the Plan and have adopted the Plan as
a sponsor.
1.32 "Enrollment Forms" shall mean, for any Plan Year, the Annual Deferral
Agreement, the Annual Election Form, the Distribution Election Form,
the Beneficiary Designation Form, the Subordination Agreement and any
other forms or documents which may be required of a Participant by
the Committee, in its sole discretion.
1.33 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
1.34 "Guaranteed Bonus Amounts" shall mean predetermined amounts that are
not subject to Employer discretion and are payable in cash to a
Participant in respect of services rendered during a Plan Year under
any bonus or incentive plan or arrangement of an Employer, including
any Elective Deductions, but excluding Commission Payouts,
stock-related awards and other non-monetary incentives.
1.35 "Investment Adjustment" shall mean an adjustment made to the balance
of any Plan Account in accordance with Section 3.04 to reflect the
performance of an Investment Benchmark pursuant to which the value of
the Plan Account is measured.
1.36 "Investment Benchmark" shall mean a benchmark made available under
the Plan from time to time by the Committee for purposes of valuing
Plan Accounts.
1.37 "Participant" shall mean any Employee (i) who is selected to
participate in the Plan, (ii) who elects to participate in the Plan,
(iii) who signs the applicable Enrollment Forms (and other forms
required by the Committee), (iv) whose signed Enrollment Forms (and
other required forms) are accepted by the Committee, (v) who
commences participation in the Plan, and (vi) whose participation has
not terminated. A spouse or former spouse of a Participant shall not
be treated as a Participant in the Plan or have an account balance
under the Plan, even if he or she has an interest in the
Participant's benefits under the Plan as a result of applicable law
or property settlements resulting from legal separation or divorce.
1.38 "Plan" shall mean the First Albany Companies Inc. Deferred
Compensation Plan For Key Employees (formerly known as the First
Albany Companies Inc. Executive Oficers Deferred Compensation Plan),
which shall be evidenced by this instrument and by each Enrollment
Form, as they may be amended from time to time.
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1.39 "Plan Accounts" shall mean the Annual Deferral Accounts and Annual
Company Match Accounts established under the Plan.
1.40 "Plan Year" shall mean the period beginning on January 1 of each year
and ending December 31.
1.41 "Restricted Investment Benchmark" means an Investment Benchmark which
is designated as a Restricted Investment Benchmark by the Committee
at the time such Investment Benchmark is initially made available
under the Plan.
1.42 "Subordination Agreement" means the New York Stock Exchange
Subordination Agreement required by the Committee to be signed and
submitted by a Participant in connection with the Participant's
deferral election with respect to a given Plan Year.
1.43 "Survivor Benefit" shall mean the benefit set forth in Article 6.
1.44 "Termination of Employment" shall mean the severing of employment
with all Employers, voluntarily or involuntarily, for any reason.
1.45 "Trust" shall mean the trust established in accordance with Article
14.
1.45 "Unforeseeable Financial Emergency" shall mean an
unanticipated emergency that is caused by an event beyond
the control of the Participant that would result in
severe financial hardship to the Participant resulting
from (i) a sudden and unexpected illness or accident of
the Participant or a dependent of the Participant, (ii) a
loss of the Participant's property due to casualty, or
(iii) such other extraordinary and unforeseeable
circumstances arising as a result of events beyond the
control of the Participant, all as determined in the sole
discretion of the Committee. In making its determination
the Committee shall be guided by the prevailing
authorities applicable under the Code.
1.46 "Vested Account Balance" shall mean, with respect to any Plan Account
as of a given date, the sum of the amounts that have become vested,
as adjusted to reflect all applicable Investment Adjustments and all
prior withdrawals and distributions, in accordance with Article 3 of
the Plan and the provisions of applicable Enrollment Forms.
1.47 "Years of Service" shall mean the total number of full Plan Years
during which a Participant has been continuously employed by one or
more Employers. Any partial Plan Year during which a Participant has
been employed by an Employer shall not be counted.
ARTICLE 2
Eligibility, Selection, Enrollment
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2.1 Selection by Committee. Participation in the Plan shall be
limited to a select group of management or highly compensated Employees of the
Employers, as determined by the Committee in its sole discretion. From that
group, the Committee shall select, in its sole discretion, the Employees who
shall be eligible to make an Annual Participant Deferral in respect of each Plan
Year. The Committee's selection of an Employee to make an Annual Participant
Deferral in respect of a particular Plan Year will not entitle that Employee to
make an Annual Participant Deferral for any subsequent Plan Year, unless the
Employee is again selected by the Committee to make an Annual Participant
Deferral for such subsequent Plan Year.
2.2 Enrollment Requirements. As a condition to being eligible to make
an Annual Participant Deferral for any Plan Year, each selected Employee shall
complete, execute and return to the Committee each of the required Enrollment
Forms, and shall have on file with the Committee a completed Beneficiary
Designation Form, all prior to the date specified by the Committee. In addition,
the Committee shall establish from time to time such other enrollment
requirements as it determines necessary, in its sole discretion.
2.3 Commencement of Participation. Provided an Employee selected to
make an Annual Participant Deferral in respect of a particular Plan Year has met
all enrollment requirements set forth in this Plan and required by the
Committee, including returning all required documents to the Committee within
the specified time period, the Employee's designated deferrals shall commence as
of the date established by the Committee in its sole discretion. If an Employee
fails to meet all such requirements within the specified time period with
respect to any Plan Year, the Employee shall not be eligible to make any
deferrals for that Plan Year.
2.4 Subsequent Elections. The Enrollment Forms submitted by a
Participant in respect of a particular Plan Year will not be effective with
respect to any subsequent Plan Year, except that the Beneficiary Designation
Form on file with the Committee will remain effective for all subsequent Plan
Years unless and until an Amended Beneficiary Designation Form is submitted. If
an Employee is selected to participate in the Plan for a subsequent Plan Year
and the required Enrollment Forms are not timely delivered for the subsequent
Plan Year, the Participant shall not be eligible to make any deferrals with
respect to such subsequent Plan Year.
2.5 Termination of Participation and/or Deferrals. If the Committee
determines in good faith that a Participant no longer qualifies as a member of a
select group of management or highly compensated employees, as membership in
such group is determined in accordance with Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, the Committee shall have the right, in its sole discretion,
to (i) terminate any Annual Participant Deferral and Annual Company Match not
yet credited to the Participant's Plan Accounts and/or (ii) immediately
distribute the Participant's then Aggregate Vested Balance as a Termination
Benefit and terminate the Participant's participation in the Plan. Any Annual
Company Match credited on behalf of the Participant that is not vested prior to
the date of the Committee's determination shall be forfeited by the Participant.
If the Committee chooses to terminate the Participant's participation in the
Plan, the Committee may, in its sole discretion, select the Participant to
participate in the Plan at such time in the future as the Participant again
becomes a member of the select group described above. If a Participant's
Employer terminates the Participant's employment for cause (as described in
Section 1.19), then, (i) the Participant's participation in the Plan shall
automatically terminate, (ii) the
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Committee shall distribute to the Participant, at the time and in the manner
described in Section 5.02, the remainder of the Participant's Annual Participant
Deferrals that were credited to the Participant's Plan Accounts prior to the
date of termination after adjustment for all prior withdrawals and distributions
and (iii) all other amounts in any of the Participant's Plan Accounts shall be
forfeited by the Participant. Any distribution made pursuant to this Section
2.05 may be subject to deferred distribution pursuant to Section 5.04.
ARTICLE 3
Participant Deferrals, Commitments, Company Match,
Investment Adjustments, Taxes and Vesting
3.1 Participant Deferrals.
(a) Deferral Election. A Participant may make an
election to defer the receipt of amounts payable to the Participant
in the form of Base Annual Salary, Bonus Amounts and Commission
Payouts for services rendered during a Plan Year. The Participant's
election shall be evidenced by an Annual Deferral Agreement and
Annual Election Form completed and submitted to the Committee in
accordance with such procedures and time frames as may be established
by the Committee in its sole discretion. Amounts deferred by a
Participant in respect of services rendered during a Plan Year shall
be referred to collectively as an Annual Participant Deferral and
shall be credited to an Annual Deferral Account established in the
name of the Participant. A separate Annual Deferral Account shall be
established and maintained for each Annual Participant Deferral. The
Committee shall have sole discretion to determine in respect of each
Plan Year: (i) whether a Participant shall be eligible to make an
Annual Participant Deferral; (ii) the form(s) of compensation which
may be the subject of any Annual Participant Deferral; and (iii) any
other terms and conditions applicable to the Annual Participant
Deferral.
(b) Minimum Deferral.
(i) Minimum. For each Plan Year
the Committee may permit a Participant to elect to defer, as
his or her Annual Participant Deferral, one or more of the
following forms of compensation, payable to the Participant
but not yet received during the Plan Year, in the following
minimum amounts:
Minimum
Deferral Amount
-------- ------
Base Annual Salary $3,000
Guaranteed Bonus Amounts $3,000
Discretionary Bonus Amounts $3,000
Commission Payouts $3,000
If an election is made for less than stated minimum amounts,
or if no election is made, the amount deferred shall be zero.
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(ii) Short Plan Year. If a
Participant first becomes a Participant after the first day of
a Plan Year, the minimum deferral of each of the Participant's
Base Annual Salary, Bonus Amounts and Commission Payouts shall
be an amount equal to the minimum set forth above, multiplied
by a fraction, the numerator of which is the number of
complete months remaining in the Plan Year and the denominator
of which is 12.
(c) Maximum Deferral. For each Plan Year the
Committee may permit a Participant to elect to defer, as his or her
Annual Participant Deferral, one or more of the following forms of
compensation, payable to the Participant but not yet received during
the Plan Year, up to the following maximum percentages:
Maximum
Deferral Percentage
Base Annual Salary 50%
Guaranteed Bonus Amounts 50%
Discretionary Bonus Amounts 100%
Commission Payouts 100%
(d) Deferral Designations.
(i) Base Annual Salary. A Participant may
designate the amount of the Annual Participant Deferral to be
deducted from his or her Base Annual Salary as either a
percentage of his or her Base Annual Salary or a fixed dollar
amount. Such amount shall be withheld from each regularly
scheduled Base Annual Salary payment in equal amounts.
(ii) Bonus Amounts. A Participant may
designate the amount of the Annual Participant Deferral to be
deducted from his or her Bonus Amounts as either a percentage
or a fixed dollar amount of specified Bonus Amounts expected
by the Participant. Percentages may be expressed as
percentages of Bonus Amounts in excess of stated thresholds
selected by the Participant. If a Participant designates the
Annual Participant Deferral to be deducted from any Bonus
Amount as a fixed dollar amount and such fixed dollar amount
exceeds the Bonus Amount actually payable to the Participant,
the entire amount of such Bonus Amount shall be withheld.
(iii) Commission Payouts. A Participant may
designate the amount of the Annual Participant Deferral to be
deducted from his or her Commission Payouts as either a
percentage of his or her Commission Payouts or a fixed dollar
amount. Percentages may be expressed as percentages of the
amount of each regularly scheduled Commission Payout payment
in excess of a stated threshold selected by the Participant.
Such amount shall be withheld from the Commission Payout
portion of each regularly scheduled Commission Payout payment
in equal amounts.
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3.2 Annual Company Match. A Participant may be credited with one or
more Company matches in respect of any Plan Year, expressed as a percentage of
the amount of Base Annual Salary, Bonus Amounts, Commission Payouts or any
combination of the foregoing deferred by the Participant pursuant to the
Participant's Annual Participant Deferral for the Plan Year. Such Company
matches credited to a Participant in respect of a Plan Year shall be referred to
collectively as the Annual Company Match for that Plan Year and shall be
credited to an Annual Company Match Account in the name of the Participant. A
separate Annual Company Match Account shall be established and maintained for
each Annual Company Match. The Board shall have sole discretion to determine in
respect of each Plan Year and each Participant: (i) whether any Annual Company
Match shall be made; (ii) the Participant(s) who shall be entitled to such
Annual Company Match; (iii) the amount of such Annual Company Match; (iv) the
date(s) on which any portion of such Annual Company Match shall be credited to
each Participant's Annual Company Match Account; (v) the Investment Benchmark(s)
that shall apply to such Annual Company Match; and (v) any other terms and
conditions applicable to such Annual Company Match.
3.3 Selection of Investment Benchmarks. In connection with a
Participant's election to make an Annual Participant Deferral in respect of a
Plan Year, the Participant shall select one or more Investment Benchmarks and
the percentage of the Participant's Annual Deferral Account and Annual Company
Match Account (if any) for such Plan Year to be adjusted to reflect the
performance of each selected Investment Benchmark; provided, however, that a
Participant's ability to select Investment Benchmarks with respect to his or her
Annual Company Match Account is subject to, and may be limited by, the Board's
discretion under Section 3.02 to designate the Investment Benchmarks that shall
apply to all or a portion of such Annual Company Match Account. All selections
of Investment Benchmarks shall be in multiples of 10% unless the Committee
determines that lower increments are acceptable. A Participant may make changes
in his or her selected Investment Benchmarks with respect to any Plan Account at
such times as the Committee may designate by completing and submitting to the
Committee an Amended Election Form in accordance with such procedures and time
frames as may be established from time to time at the sole discretion of the
Committee; provided, however, that the Committee, in its sole discretion, may
limit a Participant's ability to make such changes with respect to certain
Investment Benchmarks.
3.4 Adjustment of Plan Accounts. While a Participant's Plan Accounts
do not represent the Participant's ownership of, or any ownership interest in,
any particular assets, the Participant's Plan Accounts shall be adjusted in
accordance with the Investment Benchmark(s), subject to the conditions and
procedures set forth herein or established by the Committee from time to time.
Any cash earnings generated under an Investment Benchmark (such as interest and
cash dividends and distributions) shall, at the Committee's sole discretion,
either be deemed to be reinvested in that Investment Benchmark or reinvested in
one or more other Investment Benchmark(s) designated by the Committee. All
notional acquisitions and dispositions of Investment Benchmarks under a
Participant's Plan Accounts shall be deemed to occur at such times as the
Committee shall determine to be administratively feasible in its sole discretion
and the Participant's Plan Accounts shall be adjusted accordingly. In addition,
a Participant's Plan Accounts may be adjusted from time to time, in accordance
with procedures and practices established by the Committee, in its sole
discretion, to reflect any notional transactional costs and other fees and
expenses relating to the deemed investment, disposition or carrying of any
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Investment Benchmark for the Participant's Plan Accounts. Adjustments made in
accordance herewith shall be referred to as Investment Adjustments.
Notwithstanding anything to the contrary, any Investment Adjustments made to any
Plan Account following a Change in Control shall be made in a manner no less
favorable to Participants than the practices and procedures employed under the
Plan, or as otherwise in effect, as of the date of the Change in Control.
3.5 FICA and Other Taxes.
(a) Annual Deferral Amounts. For each Plan Year
in which an Annual Participant Deferral is being withheld from a
Participant, the Participant's Employer(s) shall withhold from that
portion of the Participant's Base Annual Salary, Bonus Amounts,
and/or Commission Payouts that is not being deferred, in a manner
determined by the Employer(s), the Participant's share of FICA and
other employment taxes; provided, however, that the Committee may
reduce the Annual Participant Deferral if necessary to comply with
applicable withholding requirements.
(b) Distributions. The Participant's
Employer(s), or the trustee of the Trust, shall withhold from any
payments made to a Participant under this Plan all federal, state and
local income, employment and other taxes required to be withheld by
the Employer(s), or the trustee of the Trust, in connection with such
payments, in amounts and in a manner to be determined in the sole
discretion of the Employer(s) and the trustee of the Trust.
3.6 Vesting.
(a) Forfeiture of Unvested Amounts. As of the
date of a Participant's Termination of Employment, Disability or
death, the amounts credited to each of the Participant's Plan
Accounts shall be reduced by the amount which has not become vested
in accordance with the vesting provisions set forth below and in the
Annual Deferral Agreement applicable to such Plan Account, and such
unvested amounts shall be forfeited by the Participant.
(b) Vesting of Amounts. The Participant shall be
vested in the amounts credited to his or her Annual Deferral Account
and Annual Company Match Account in respect of each given Plan Year
as set forth in the Annual Deferral Agreement pertaining to such Plan
Year. The vesting terms set forth in each Annual Deferral Agreement
shall be established by the Committee in its sole discretion and may
vary for each Participant and each Plan Year. Such vesting terms may,
in the Committee's discretion, provide for acceleration of vesting
upon a Change in Control.
(c) Vesting After Covered Termination. Unless
otherwise specifically provided under the terms of a particular
Annual Deferral Agreement, in the event of a Participant's Covered
Termination, such Participant, as of the effective date of such
Covered Termination, shall be 100% vested in all amounts credited to
each of the Participant's Plan Accounts, as adjusted for the
applicable Investment Adjustments and all prior withdrawals and
distributions.
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(d) Vesting Upon Plan Termination. In the event
of a termination of the Plan as it relates to any Participant, all
amounts credited to any and all Plan Accounts of such Participant as
of the effective date of such termination shall be 100% vested.
(e) Acceleration of Vesting by Committee.
Notwithstanding anything to the contrary contained in the Plan or any
Annual Deferral Agreement, the Committee shall have the authority,
exercisable in its sole discretion, to accelerate the vesting of any
amounts credited to any Plan Account of any Participant and any such
acceleration shall be evidenced by a written notice to the
Participant setting forth in detail the Plan Account(s) and the
amounts affected by the Committee's decision to accelerate vesting
and the terms of the new vesting schedule applicable to such amounts.
ARTICLE 4
Suspension of Deferrals
4.1 Unforeseeable Financial Emergencies. If a Participant experiences
an Unforeseeable Financial Emergency, the Participant may petition the Committee
to suspend any deferrals required to be made by the Participant. The Committee
shall determine, in its sole discretion, whether to approve the Participant's
petition. If the petition for a suspension is approved, suspension shall take
effect upon the date of approval.
4.2 Disability. From and after the date that a Participant is deemed
have suffered a Disability, any standing deferral election of the Participant
shall automatically be suspended and no further deferrals shall be made with
respect to the Participant.
4.3 Resumption of Deferrals. If deferrals by a Participant have been
suspended during a Plan Year due to an Unforeseeable Financial Emergency or a
Disability, the Participant will not be eligible to make any further deferrals
in respect of that Plan Year. The Participant may be eligible to make deferrals
for subsequent Plan Years provided the Participant is selected to make deferrals
for such subsequent Plan Years and the Participant complies with the election
requirements under the Plan.
ARTICLE 5
Distribution of Plan Accounts
5.1 Distribution Elections. A Participant shall make a
Distribution Election at the time he or she makes an Annual Deferral Election
with respect to a given Plan Year, to have the Vested Account Balance of the
Participant's Annual Deferral Account and Annual Company Match Account (if any)
for that Plan Year distributed in either
(i) A single lump sum as of the first April 15 after the end of
either the fifth (5th), sixth (6th) seventh (7th) eighth
(8th), ninth (9th) or tenth (10th) Plan Year following the
Plan Year in respect of which the Annual Deferral Election was
made; or
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(ii) Substantially equal annual installments commencing no earlier
than the first April 15 after the end of the fifth (5th) Plan
Year following the Plan Year in respect of which the Annual
Deferral Election was made and ending no later than the first
April 15 after the end of the tenth (10th) Plan Year following
the Plan Year in respect of which the Annual Deferral Election
was made.
Subject to any restrictions that may be imposed by the Committee, a
Participant may amend his or her Distribution Election with respect to any Plan
Account by completing and submitting to the Committee within such time frame as
the Committee may designate, an Amended Distribution Election Form; provided,
however, that such Amended Election Form is submitted no later than April 15 of
the Plan Year prior to the Plan Year in which distribution of the Vested Account
Balance of such Plan Account was scheduled to be made in accordance with the
Participant's original Distribution Election, and such Amended Election Form is
approved and accepted by the Committee in its sole discretion. A Participant may
amend his or her Distribution Election to change the distribution method from a
lump sum to installments, or from installments to a lump sum, and/or choose a
later distribution date (but in no event later than April 15 of the tenth (10th)
Plan Year following the end of the Plan Year in respect of which the Annual
Deferral Election was made). Notwithstanding a Participant's Distribution
Election with respect to the Vested Account Balance of any Plan Account, some or
all of such Vested Account Balance may be subject to earlier distribution
pursuant to Section 5.02 or deferred distribution pursuant to Section 5.04.
5.2 Early Distribution of Aggregate Vested Balance.
Notwithstanding any Distribution Election, and subject to the provisions of
Section 5.04, distribution of a Participant's Vested Account Balance in the case
of a Participant who incurs a Termination of Employment prior to the end of the
fifth (5th) Plan Year following the end of the Plan Year in respect of which the
Annual Deferral Election was made shall be made no later than ninety (90) days
following such Participant's Termination of Employment.
5.3 Withdrawal in the Event of an Unforeseeable Financial
Emergency. Subject to Section 5.04, in the event that a Participant or (after a
Participant's death) a Participant's Beneficiary experiences an Unforeseeable
Financial Emergency, the Participant or Beneficiary may petition the Committee
to receive a partial or full payout of amounts credited to one or more of the
Participant's Plan Accounts. The Committee shall determine, in its sole
discretion, whether the requested payout shall be made, the amount of the payout
and the Plan Accounts from which the payout will be made; provided, however,
that the payout shall not exceed the lesser of the Participant's Aggregate
Vested Benefit or the amount reasonably needed to satisfy the Unforeseeable
Financial Emergency. In making any determinations under this Section 5.03, the
Committee shall be guided by the prevailing authorities under the Code. If,
subject to the sole discretion of the Committee, the petition for a payout is
approved, the payout shall be made within ninety (90) days of the date of
approval.
5.4 Distribution Restrictions. Notwithstanding anything to the
contrary contained in this Plan or in any Enrollment Form, Amended Distribution
Election Form or any other document, the Committee may impose limitations and
restrictions on the payment of amounts allocated by a Participant to any
Restricted Investment Benchmark(s) and may defer payment of those amounts for
such time periods as the Committee determines, in its good faith judgement, to
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be consistent with the nature of the investment on which such Restricted
Investment Benchmark is based. The Committee shall determine the amounts
affected, the nature of the limitations and restrictions on benefit payments,
and the length of deferral and time of payment of such amounts. In addition,
distributions under the Plan shall be subject to any constraints or restrictions
imposed under the Subordination Agreement or any other ancilliary agreements to
which a Participant becomes a party in conjunction with, or as a condition to,
participation in the Plan. Any such ancilliary agreement shall be incorporated
into and become a part of the Plan.
5.5 Valuation of Plan Accounts Pending Distribution. To the extent
that the distribution of any portion of any Plan Account is deferred, whether
pursuant to the limitations imposed under this Article 5 or for any other
reason, any amounts remaining to the credit of the Plan Account shall continue
to be adjusted by the applicable Investment Adjustments in accordance with
Article 3.
5.6 Form of Payment. Distributions under the Plan shall be paid in
cash in a single lump sum; except, however, that the Committee may provide, in
its discretion, that any distribution attributable to the portion of a Plan
Account that is deemed invested in an Investment Benchmark that tracks that
value of Company Stock shall be paid in shares of Company Stock.
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ARTICLE 6
Survivor Benefit
6.1 Survivor Benefit. Subject to Article 5, a Participant's
Beneficiary shall receive a Survivor Benefit equal to the Participant's
Aggregate Vested Balance, if the Participant dies before he or she has received
a complete distribution of his or her Aggregate Vested Benefit.
6.2 Payment of Survivor Benefit. The Survivor Benefit shall be
payable to the Beneficiary indicated on the Participant's Beneficiary
Designation Form in a lump sum payment, provided, however that if the
Participant's Aggregate Vested Balance at the time of his or her death is
greater than $25,000, payment may be made, in the sole discretion of the
Committee, in a lump sum or in annual installment payments that do not exceed
five (5) years in duration. Subject to Article 5, the lump sum payment shall be
made, or installment payments shall commence, no later than ninety (90) days
after the date the Committee is provided with proof that is satisfactory to the
Committee of the Participant's death.
ARTICLE 7
Disability Benefit
7.1 Disability Benefit Notwithstanding any Distribution Election
under Article 5, a Participant suffering a Disability shall receive a Disability
Benefit equal to his or her Aggregate Vested Balance. Subject to Article 5, the
Disability Benefit shall be paid in a lump sum within ninety (90) days of the
Committee's determination of Disability.
ARTICLE 8
Beneficiary Designation
8.1 Beneficiary. Each Participant shall have the right, at any
time, to designate his or her Beneficiary(ies) (both primary as well as
contingent) to receive any benefits payable under the Plan to a beneficiary upon
the death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other plan
of an Employer in which the Participant participates.
8.2 Beneficiary Designation; Change; Spousal Consent. A
Participant shall designate his or her Beneficiary by completing and signing a
Beneficiary Designation Form, and returning it to the Committee or its
designated agent. A Participant shall have the right to change a Beneficiary by
completing, signing and submitting to the Committee an Amended Beneficiary
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<PAGE> 21
Designation Form in accordance with the Committee's rules and procedures, as in
effect from time to time. If the Participant names someone other than his or her
spouse as a Beneficiary, a spousal consent, in the form designated by the
Committee, must be signed by that Participant's spouse and returned to the
Committee. Upon the acceptance by the Committee of an Amended Beneficiary
Designation Form, all Beneficiary designations previously filed shall be
canceled. The Committee shall be entitled to rely on the last Beneficiary
Designation Form filed by the Participant and accepted by the Committee prior to
his or her death.
8.3 Acknowledgment. No designation or change in designation of a
Beneficiary shall be effective until received, accepted and acknowledged in
writing by the Committee or its designated agent.
8.4 No Beneficiary Designation. If a Participant fails to
designate a Beneficiary as provided above or, if all designated Beneficiaries
predecease the Participant or die prior to complete distribution of the
Participant's Aggregate Vested Benefit, then the Participant's designated
Beneficiary shall be deemed to be his or her surviving spouse. If the
Participant has no surviving spouse, the benefits remaining under the Plan to be
paid to a Beneficiary shall be payable to the executor or personal
representative of the Participant's estate.
8.5 Doubt as to Beneficiary. If the Committee has any doubt as to
the proper Beneficiary to receive payments pursuant to this Plan, the Committee
shall have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
8.6 Discharge of Obligations. The payment of benefits under the
Plan to a Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and each of the Participant's Annual Deferral Agreements shall
terminate upon such full payment of benefits.
ARTICLE 9
Leave of Absence
9.1 Paid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take a paid leave of absence from the
employment of the Employer, the Participant shall continue to be considered
employed by the Employer and the appropriate amounts shall continue to be
withheld from the Participant's compensation pursuant to the Participant's then
current Annual Election Form.
9.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence from
the employment of the Employer, the Participant shall continue to be considered
employed by the Employer and the Participant shall be excused from making
deferrals until the earlier of the date the leave of absence expires or the
Participant returns to a paid employment status. Upon such expiration or return,
deferrals shall resume for the remaining portion of the Plan Year in which the
expiration
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<PAGE> 22
or return occurs, based on the deferral election, if any, made for that Plan
Year. If no election was made for that Plan Year, no deferral shall be withheld.
ARTICLE 10
Termination, Amendment or Modification
10.1 Termination. Although the Employers anticipate that they will
continue the Plan for an indefinite period of time, there is no guarantee that
any Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to discontinue its
sponsorship of the Plan and to terminate the Plan, at any time, with respect to
its participating Employees by action of its board of directors. Upon the
termination of the Plan with respect to any Employer, subject to Section 5.04,
all amounts credited to each of the Plan Accounts of each affected Participant
shall be 100% vested and shall be paid to the Participant or, in the case of the
Participant's death, to the Participant's Beneficiary, in a lump sum
notwithstanding any elections made by the Participant, and the Annual Deferral
Agreements relating to each of the Participant's Plan Accounts shall terminate
upon full payment of such Aggregate Vested Balance.
10.2 Amendment. The Company may, at any time, amend or modify the
Plan in whole or in part with respect to any or all Employers by the actions of
the Board; provided, however, that (i) no amendment or modification shall be
effective to decrease or restrict the value of a Participant's Aggregate Vested
Balance in existence at the time the amendment or modification is made,
calculated as if the Participant had experienced a Termination of Employment as
of the effective date of the amendment or modification and (ii) except as
specifically provided in Section 10.01, no amendment or modification shall be
made after a Change in Control which adversely affects the vesting, calculation
or payment of benefits hereunder or diminishes any other rights or protections
any Participant or Beneficiary would have had but for such amendment or
modification, unless each affected Participant or Beneficiary consents in
writing to such amendment.
10.3 Effect of Payment. The full payment of the applicable benefit
under the provisions of the Plan shall completely discharge all obligations to a
Participant and his or her designated Beneficiaries under this Plan and each of
the Participant's Annual Deferral Agreements shall terminate.
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ARTICLE 11
Administration
11.1 Committee Duties. This Plan shall be administered by a
Committee which shall consist of the Board, or such committee as the Board shall
appoint. Members of the Committee may be Participants under this Plan. The
Committee shall also have the discretion and authority to (i) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Plan and (ii) decide or resolve any and all questions
including interpretations of this Plan, as may arise in connection with the
Plan. Any individual serving on the Committee who is a Participant shall not
vote or act on any matter relating solely to himself or herself. When making a
determination or calculation, the Committee shall be entitled to rely on
information furnished by a Participant or the Company.
11.2 Agents. In the administration of this Plan, the Committee may,
from time to time, employ agents and delegate to them such administrative duties
as it sees fit (including acting through a duly appointed representative) and
may from time to time consult with counsel who may be counsel to any Employer.
11.3 Binding Effect of Decisions. The decision or action of the
Committee with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding upon
all persons having any interest in the Plan.
11.4 Indemnity of Committee. All Employers shall indemnify and hold
harmless the members of the Committee, and any Employee to whom duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with respect
to this Plan, except in the case of willful misconduct by the Committee or any
of its members or any such Employee.
11.5 Employer Information. To enable the Committee to perform its
functions, each Employer shall supply full and timely information to the
Committee on all matters relating to the compensation of its Participants, the
date and circumstances of the Retirement, Disability, death or Termination of
Employment of its Participants, and such other pertinent information as the
Committee may reasonably require.
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<PAGE> 24
ARTICLE 12
Other Benefits and Agreements
The benefits provided for a Participant and Participant's
Beneficiary under the Plan are in addition to any other benefits available to
such Participant under any other plan or program for employees of the
Participant's Employer. The Plan shall supplement and shall not supersede,
modify or amend any other such plan or program except as may otherwise be
expressly provided.
ARTICLE 13
Claims Procedures
13.1 Presentation of Claim. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary being referred to below as
a "Claimant") may deliver to the Committee a written claim for a determination
with respect to the amounts distributable to such Claimant from the Plan. If
such a claim relates to the contents of a notice received by the Claimant, the
claim must be made within 60 days after such notice was received by the
Claimant. The claim must state with particularity the determination desired by
the Claimant. All other claims must be made within 180 days of the date on which
the event that caused the claim to arise occurred. The claim must state with
particularity the determination desired by the Claimant.
13.2 Notification of Decision. The Committee shall consider a
Claimant's claim within a reasonable time, and shall notify the Claimant in
writing:
(a) that the Claimant's requested determination has been made,
and that the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in
whole or in part, to the Claimant's requested
determination, and such notice must set forth in a manner
calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim,
or any part of it;
(ii) specific reference(s) to pertinent provisions of the
Plan upon which such denial was based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect
the claim, and an explanation of why such material
or information is necessary; and
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<PAGE> 25
(iv) an explanation of the claim review procedure set
forth in Section 13.03 below.
13.3 Review of a Denied Claim. Within 60 days after receiving a
notice from the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file with the
Committee a written request for a review of the denial of the claim. Thereafter,
but not later than 30 days after the review procedure began, the Claimant (or
the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole
discretion, may grant.
13.4 Decision on Review. The Committee shall render its decision
on review promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's decision
must be rendered within 120 days after such date. Such decision must be written
in a manner calculated to be understood by the Claimant, and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon
which the decision was based; and
(c) such other matters as the Committee deems relevant.
13.5 Arbitration. A Claimant's compliance with the foregoing
provisions of this Article 13 is a mandatory prerequisite to a Claimant's right
to commence any arbitration with respect to any claim for benefits under this
Plan. Any and all claims that are not resolved to the satisfaction of a Claimant
under the above provisions of this Article 13 shall be subject to arbitration
conducted in Albany, New York before a panel of three (3) arbitrators pursuant
to rules of the National Association of Securities Dealers. Unless otherwise
provided herein each party shall bear its own costs and expenses in connection
with such arbitration and the parties shall contribute equally the arbitrator's
fees. The arbitrator's decision in any dispute shall be final and binding and
shall not be subject to appeal or judicial review.
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ARTICLE 14
Trust
14.1 Establishment of the Trust. The Company may establish one
or more Trusts to which the Employers may transfer such assets as the Employers
determine in their sole discretion to assist in meeting their obligations under
the Plan.
14.2 Interrelationship of the Plan and the Trust. The provisions
of the Plan and the relevant Annual Deferral Agreements shall govern the rights
of a Participant to receive distributions pursuant to the Plan. The provisions
of the Trust shall govern the rights of the Employers, Participants and the
creditors of the Employers to the assets transferred to the Trust.
14.3 Distributions From the Trust. Each Employer's obligations
under the Plan may be satisfied with Trust assets distributed pursuant to the
terms of the Trust, and any such distribution shall reduce the Employer's
obligations under this Agreement.
ARTICLE 15
Miscellaneous
15.1 Status of Plan. The Plan is intended to be a plan that is
not qualified within the meaning of Code Section 401(a) and that "is unfunded
and is maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employee"
within the meaning of ERISA Sections 201(2), 301(a)(3) and 401(a)(1). The Plan
shall be administered and interpreted to the extent possible in a manner
consistent with that intent. All Plan Accounts and all credits and other
adjustments to such Plan Accounts shall be bookkeeping entries only and shall be
utilized solely as a device for the measurement and determination of amounts to
be paid under the Plan. No Plan Accounts, credits or other adjustments under the
Plan shall be interpreted as an indication that any benefits under the Plan are
in any way funded.
15.2 Unsecured General Creditor. Participants and their
Beneficiaries, heirs, successors and assigns shall have no legal or equitable
rights, interests or claims in any property or assets of an Employer. For
purposes of the payment of benefits under this Plan, any and all of an
Employer's, assets, shall be, and remain, the general, unpledged unrestricted
assets of the Employer. An Employer's obligation under the Plan shall be merely
that of an unfunded and unsecured promise to pay money in the future.
15.3 Employer's Liability. An Employer's liability for the
payment of benefits shall be defined only by the Plan and the Plan Agreement, as
entered into between the Employer and a
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Participant. An Employer shall have no obligation to a Participant under the
Plan except as expressly provided in the Plan and his or her Plan Agreement.
15.4 Nonassignability. Neither a Participant nor any other
person shall have any right to commute, sell, assign, transfer, pledge,
anticipate, mortgage or otherwise encumber, transfer, hypothecate, alienate or
convey in advance of actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the amounts payable shall,
prior to actual payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, be transferable by
operation of law in the event of a Participant's or any other person's
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or otherwise.
15.5 Not a Contract of Employment. The terms and conditions of
this Plan and the Annual Deferral Agreements under this Plan shall not be deemed
to constitute a contract of employment between any Employer and the Participant.
Such employment is hereby acknowledged to be an "at will" employment
relationship that can be terminated at any time for any reason, or no reason,
with or without cause, and with or without notice, except as otherwise provided
in a written employment agreement. Nothing in this Plan or any Annual Deferral
Agreement shall be deemed to give a Participant the right to be retained in the
service of any Employer as an Employee or to interfere with the right of any
Employer to discipline or discharge the Participant at any time.
15.6 Furnishing Information. A Participant or his or her
Beneficiary will cooperate with the Committee by furnishing any and all
information requested by the Committee and take such other actions as may be
requested in order to facilitate the administration of the Plan and the payments
of benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
15.7 Terms. Whenever any words are used herein in the masculine,
they shall be construed as though they were in the feminine in all cases where
they would so apply; and whenever any words are used herein in the singular or
in the plural, they shall be construed as though they were used in the plural or
the singular, as the case may be, in all cases where they would so apply.
15.8 Captions. The captions of the articles, sections and
paragraphs of this Plan are for convenience only and shall not control or affect
the meaning or construction of any of its provisions.
15.9 Governing Law. Subject to ERISA, the provisions of this
Plan shall be construed and interpreted according to the internal laws of the
State of New York without regard to its conflicts of laws principles.
15.10 Notice. Any notice or filing required or permitted to be
given to the Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address below:
First Albany Companies Inc.
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30 South Pearl Street
Albany, New York 12207
Attn: General Counsel
Such notice shall be deemed given as of the date of delivery or, if delivery is
made by mail, as of the date shown on the postmark or the receipt for
registration or certification.
Any notice or filing required or permitted to be given to a Participant under
this Plan shall be sufficient if in writing and hand-delivered, or sent by mail,
to the last known address of the Participant.
15.11 Successors. The provisions of this Plan shall bind and
inure to the benefit of the Participant's Employer and its successors and
assigns and the Participant and the Participant's designated Beneficiaries.
15.12 Spouse's Interest. The interest in the benefits hereunder
of a spouse of a Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be transferable by such
spouse in any manner, including but not limited to such spouse's will, nor shall
such interest pass under the laws of intestate succession.
15.13 Validity. In case any provision of this Plan shall be
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but this Plan shall be construed and enforced
as if such illegal or invalid provision had never been inserted herein.
15.14 Incompetent. If the Committee determines in its discretion
that a benefit under this Plan is to be paid to a minor, a person declared
incompetent or to a person incapable of handling the disposition of that
person's property, the Committee may direct payment of such benefit to the
guardian, legal representative or person having the care and custody of such
minor, incompetent or incapable person. The Committee may require proof of
minority, incompetence, incapacity or guardianship, as it may deem appropriate
prior to distribution of the benefit. Any payment of a benefit shall be a
payment for the account of the Participant and the Participant's Beneficiary, as
the case may be, and shall be a complete discharge of any liability under the
Plan for such payment amount.
15.15 Distribution in the Event of Taxation. If, for any reason,
all or any portion of a Participant's benefit under this Plan becomes taxable to
the Participant prior to receipt, a Participant may petition the Committee
before a Change in Control, or the trustee of the Trust after a Change in
Control, for a distribution of that portion of his or her benefit that has
become taxable. Upon the grant of such a petition, which grant shall not be
unreasonably withheld, a Participant's Employer shall, subject to Section 5.4,
distribute to the Participant immediately available funds in an amount equal to
the taxable portion of his or her benefit (which amount shall not exceed a
Participant's unpaid Aggregate Vested Balance under the Plan). If the petition
is granted, the tax liability distribution shall be made within 90 days of the
date when the Participant's petition is granted. Such a distribution shall
affect and reduce the benefits to be paid under this Plan.
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<PAGE> 29
15.16 Insurance. The Employers, on their own behalf or on behalf
of the trustee of the Trust, and, in their sole discretion, may apply for and
procure insurance on the life of the Participant, in such amounts and in such
forms as the Trust may choose. The Employers or the trustee of the Trust, as the
case may be, shall be the sole owner and beneficiary of any such insurance. The
Participant shall have no interest whatsoever in any such policy or policies,
and at the request of the Employers shall submit to medical examinations and
supply such information and execute such documents as may be required by the
insurance company or companies to whom the Employers have applied for insurance.
15.17 Legal Fees To Enforce Rights After Change in Control. The
Company and each Employer is aware that upon the occurrence of a Change in
Control, the Board or the board of directors of the Participant's Employer
(which might then be composed of new members) or a shareholder of the Company or
the Participant's Employer, or of any successor corporation might then cause or
attempt to cause the Company or the Participant's Employer or such successor to
refuse to comply with its obligations under the Plan and might cause or attempt
to cause the Company or the Participant's Employer to institute, or may
institute, arbitration or litigation seeking to deny Participants the benefits
intended under the Plan. In these circumstances, the purpose of the Plan could
be frustrated. Accordingly, if, following a Change in Control, it should appear
to any Participant that the Company, the Participant's Employer or any successor
corporation has failed to comply with any of its obligations under the Plan or
any agreement thereunder or, if the Company, such Employer or any other person
takes any action to declare the Plan void or unenforceable or institutes any
arbitration, litigation or other legal action designed to deny, diminish or to
recover from any Participant the benefits intended to be provided, then the
Company and the Participant's Employer irrevocably authorize such Participant to
retain counsel of his or her choice at the expense of the Company and the
Employer (who shall be jointly and severally liable) to represent such
Participant in connection with the initiation or defense of any arbitration,
litigation or other legal action, whether by or against the Company, the
Participant's Employer or any director, officer, shareholder or other person
affiliated with the Company, the Participant's Employer or any successor thereto
in any jurisdiction.
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EXHIBIT 5(a)
[FIRST ALBANY COMPANIES INC. LETTERHEAD]
May 10, 2000
First Albany Companies Inc.
30 South Pearl Street
Albany, NY 12207
RE: First Albany Companies Inc. - Registration Statement on Form S-8
relating to the First Albany Companies Inc. Deferred Compensation
Plan For Key Employee (the "Registration Statement")
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of First Albany
Companies Inc., a New York corporation ("First Albany"), and I am familiar with
the proceedings taken by First Albany in connection with the proposed offering
of up to $9,000,000.00 in principle amount of deferred compensation obligations
(the "Obligations") and up to 250,000 shares of First Albany common stock, par
value $.01 (the "Shares"), by First Albany pursuant to the First Albany
Companies Inc. Deferred Compensation Plan For Key Employees (the "Plan"), with
respect to which the Registration Statement has been prepared for filing with
the Securities and Exchange Commission under the Securities Act of 1933.
In arriving at the opinions expressed below, I have reviewed the
Registration Statement and the Plan. In addition, I reviewed the originals or
copies certified or otherwise identified to my satisfaction of all such
corporate records of First Albany and such other instruments and other
certificates of public officials, officers and representatives of First Albany
and such other persons, and I have made such investigations of law, as I have
deemed appropriate as a basis for the opinion express below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed.
Based upon the foregoing, and subject to the further assumptions and
qualifications set forth below, it is my opinion that:
1. When
a. the applicable provisions of the Securities Act of 1933 and of
State securities or "blue sky" laws shall have been complied
with; and
b. the Company's Board of Directors shall have duly authorized the
issue and sale of the Obligations;
the Obligations will be legally issued, fully paid and nonassessable; and
<PAGE> 2
When
a. the applicable provisions of the Securities Act of 1933 and of
State securities or "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.
Insofar as the foregoing opinions relate to the legality, validity,
binding effect or enforceability of any agreement or obligation of First Albany,
(a) I have assumed that each other party to such agreement or obligation has
satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it and (b)
such opinion is subject to applicable bankruptcy, insolvency and similar laws
affecting creditor's rights generally and to general principles of equity.
The foregoing opinion is limited to the Federal laws of the United
States of America and the law of the State of New York.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Stephen P. Wink
-------------------
Stephen P. Wink
Senior Vice President
General Counsel
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 3, 2000 relating to the
financial statements and financial statement schedule, which appears in First
Albany Companies Inc.'s Annual Report on Form 10-K for the year ended December
31, 1999.
/s/ PricewaterhouseCoopers L.L.P.
April 26, 2000
