VOTING AGREEMENT
EXHIBIT
3
[EXECUTION
COPY]
THIS
VOTING AGREEMENT (“Agreement”), dated as of May 14, 2007, is made by and among
MATLINPATTERSON FA ACQUISITION LLC, a Delaware limited liability company
(the
“Investor”), and XXXX X. XXXXXXXX (the “Shareholder”), an
individual and a shareholder of First Albany Companies Inc., a New York
corporation (the “Company”).
PRELIMINARY
STATEMENTS
WHEREAS,
the Company and Investor are entering into an Investment Agreement (the
“Investment Agreement”), dated as of May 14, 2007, providing for the
issuance and sale by the Company to the Purchasers (as defined therein),
and the
purchase by the Purchasers from the Company, of certain shares (the
“Purchased Shares”) of the common stock, par value $.01 per share, of the
Company (“Common Stock”) that upon issuance will represent a majority of
the outstanding Common Stock (such purchase, being sometimes hereinafter
referred to as the “Investment”) upon the terms and subject to the
conditions set forth in the Investment Agreement (as defined in the Investment
Agreement).
WHEREAS,
the Investment, the Charter Amendment (as defined in the Investment Agreement)
and certain other aspects of the Transactions (as defined in the Investment
Agreement) (collectively, the “Shareholders Approvals”, as more fully
defined in the Investment Agreement) are subject to the approval of the holders
of the Common Stock as provided in the Investment Agreement and as required
under the New York Business Corporation Law (the “NYBCL”) and NASDAQ
rules.
WHEREAS,
the Shareholder beneficially owns and has the power to direct the voting
of the
shares of Common Stock set forth opposite his name on Exhibit A
hereto. As used herein, the term “Shares” includes all shares
of such Common Stock of which the Shareholder at any time prior to the
termination of this Agreement is the beneficial owner or is otherwise able
to
direct the voting thereof (including any such shares of Common Stock acquired
after the date hereof upon the exercise of any stock options, warrants or
similar instruments or otherwise) and all securities issued or exchanged
with
respect to any such Shares upon any reclassification, recapitalization,
reorganization, merger, consolidation, spin-off, stock split, combination,
stock
or other dividend or any other change in the Company’s capital
structure.
WHEREAS,
to induce Investor to enter into the Investment Agreement and to consummate
the
Investment, the Shareholder has agreed, upon the terms and subject to the
conditions set forth herein, in his capacity as a Shareholder of the Company,
to
vote his Shares in favor of each of the Shareholder Approvals.
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency
and
adequacy of which are hereby acknowledged, the parties to this Agreement
agree
as follows:
1. Shareholders’
Representations and Warranties.
(a) The
Shareholder represents and warrants to the Investor that the Shareholder
(i) is the record (except as may be noted on Exhibit A hereto)
beneficial owner of that number of Shares set forth opposite its name set
forth
on Exhibit A hereto, free and clear of any mortgage, pledge, lien,
security interest, claim, restriction on voting or otherwise or other
encumbrance and (ii) has the right to vote or to direct the voting of such
Shares free of any restriction or limitation.
(b) Neither
the execution and delivery of this Agreement nor the performance by the
Shareholder of his obligations hereunder will result in a violation of, or
a
default under, or conflict with any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Shareholder
is a party or by which the Shareholder is bound or to which the Shares are
subject, except, as would not prevent, delay or otherwise materially impair
the
Shareholder’s ability to perform his obligations
hereunder. Execution, delivery and performance of this Agreement by
the Shareholder will not violate, or require any consent, approval or notice
under, any provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Shareholder or the Shares, except (x) for any
reports under Sections 13(d) of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby or
(y)
as would not reasonably be expected to prevent, delay or otherwise materially
impair the Shareholder’s ability to perform his obligations
hereunder.
2. No
Other Proxies or Voting Trusts. The Shareholder hereby revokes
any and all proxies and voting instructions with respect to the Shares
previously given by Shareholder and agrees that he will not grant or give
any
other proxies or voting instructions with respect to the voting of the Shares,
enter into any voting trust or other arrangement or agreement with respect
to
the voting of the Shares (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not be
effective), or agree, in any manner, to vote the Shares for or against any
proposal submitted to the Shareholders of the Company except in furtherance
of
the proposals set forth in paragraph 3.
3. Agreements
with Respect to the Shares.
(a) The
Shareholder agrees during the Term (as defined in Section 7 below) of this
Agreement:
(i) to
vote the Shares (x) in favor of each of the Shareholder Approvals at every
meeting of the Shareholders of the Company at which such matters are considered
and at every adjournment thereof, and in any other circumstances upon which
a
vote, consent or other approval (including by written consent) relating to
the
Investment Agreement and the Transactions contemplated thereby or the Charter
Amendment or any of the other Shareholder Approvals is sought and (y) with
respect to all other proposals submitted to the shareholders of the Company
which, directly or indirectly, in any way relate to the Investment or any
of the
other Transactions contemplated by the Investment Agreement, in such manner
as
Investor may direct; and
2
(ii) not
to solicit, encourage or recommend to other shareholders of the Company that
(w)
they vote their shares of Common Stock in any contrary manner, (x) they refrain
from voting their shares, (y) they tender, exchange or otherwise dispose
of
their shares of Common Stock pursuant to a Competing Transaction (as hereinafter
defined), or (z) they attempt to exercise any statutory appraisal or other
similar rights they may have.
(b) Unless
otherwise instructed in writing by the Investor, during the Term of this
Agreement, Shareholder will vote the Shares against any Competing
Transaction.
(c) Except
with the prior written consent of the Investor, during the Term of this
Agreement, the Shareholder agrees that the Shareholder will not, and shall
use
his reasonable best efforts not to permit any employee, attorney, accountant,
investment banker or other agent or representative of the Shareholder to,
initiate, solicit, negotiate, encourage, or provide confidential information
in
order to facilitate any Competing Transaction.
(d) No
person executing this Agreement (or an affiliate thereof) who is or becomes
during the Term of this Agreement a director of the Company makes any agreement
or understanding herein in his capacity as such director. The
Shareholder is executing this Agreement solely in its capacity as the record
and
beneficial owner of the Shareholder’s Shares.
(e) For
purposes of this Agreement, a “Competing Transaction” means any of the
following (other than the transactions expressly provided for in and to be
effected pursuant to this Agreement): (i) any merger, reorganization,
consolidation, share exchange, business combination, liquidation, dissolution,
recapitalization or similar transaction involving the Company; (ii) any direct
or indirect acquisition or purchase, in a single transaction or series of
related transactions, of (x) 20% or more of the consolidated gross assets
of the
Company and the Subsidiaries (as defined in the Investment Agreement), taken
as
a whole, (y) 20% or more of any class of voting securities of the Company
or any
Subsidiary (or any debt or equity securities convertible into or exercisable
or
exchangeable for such amount of voting securities) or (z) 15% or more of
any
class of voting securities of the Company or any Subsidiary (or any debt
or
equity securities convertible into or exercisable or exchangeable for such
amount of voting securities) if such securities carry the right, contractually
or otherwise, to appoint or designate any member or members of the Board;
or
(iii) any tender offer or exchange offer that, if consummated, would result
in
any Person or “group” (within the meaning of Section 13(d)(3) of the Exchange
Act) beneficially owning 20% or more of any class of voting securities of
the
Company.
4. Proxies. In
furtherance of the foregoing, the Shareholder is granting to Xxxxxxxxxxx
Xxxxxxx
and Xxxxx Xxxxxxxx, representatives of the Investor, and each of them, with
full
power of substitution, irrevocable proxies and powers of attorney (which
may be
in the form annexed hereto or such other form consistent with the terms hereof
and thereof as Investor may specify) on the matters described in paragraph
3,
and to execute and deliver any written consents to fulfill such Shareholder’s
obligations under this Agreement. This proxy is coupled with an
interest and is irrevocable until the end of the Term of this Agreement,
at
which time it shall terminate.
3
5. Effect
of Stock Splits, Stock Dividends, Recapitalizations, Etc.. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Shares or the acquisition of shares of Common Stock or
other voting securities of the Company by the Shareholder, the number of
Shares
listed on Exhibit A beside the name of Shareholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach
to
any additional Shares or other voting securities of the Company issued to
or
acquired by the Shareholder.
6. Specific
Performance. The Shareholder acknowledges that it will be
impossible to measure in money the damage to Investor if the Shareholder
fails
to comply with the obligations imposed by this Agreement, and that, in the
event
of any such failure, Investor will not have an adequate remedy at law or
in
damages. Accordingly, the Shareholder agrees that injunctive relief
or any other equitable remedy, in addition to any remedies at law or damages,
is
the appropriate remedy for any such failure and will not oppose the granting
of
any such remedy on the basis that Investor has an adequate remedy at
law. The Shareholder agrees not to seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with Investor
seeking or obtaining such equitable relief.
7. Term
of Agreement; Termination.
(a) The
term of this Agreement shall commence on the date hereof and shall terminate
upon the earlier to occur of (i) the Closing (as defined in the Investment
Agreement), (ii) the due and proper termination of the Investment Agreement
in
accordance with its terms, or (iii) the mutual consent of the Investor and
the
Shareholder (such period from the date hereof until such termination is referred
to herein as the “Term”). Upon such termination, no party
shall have any further obligations or liabilities hereunder.
(b) The
obligations of the Shareholder set forth in this Agreement shall not be
effective or binding upon the Shareholder until after such time as the
Investment Agreement is executed and delivered by the Investor and the
Company.
8. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter of this Agreement and supersedes
all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter of this
Agreement.
(b) Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and shall be deemed to have been
duly
given on the next business day after the same is sent, if delivered personally
or sent by telecopy or overnight delivery, or five calendar days after the
same
is sent, if sent by registered or certified mail, return receipt requested,
postage prepaid, as set forth below, or to such other persons or addresses
as
may be designated in writing in accordance with the terms hereof by the party
to
receive such notice.
4
If
to the
Investor, to:
MatlinPatterson
FA Acquisition LLC
c/o
MatlinPatterson Global Advisers LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: General
Counsel
Fax:
(000) 000-0000
with
a copy by fax or messenger or
courier to:
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx
If
to
Shareholder, to the address set forth below Shareholder’s name on Exhibit
A.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as applied to contracts
made
and fully performed in such state without giving effect to the principles
of
conflict of laws thereof. Each party to this Agreement
(“Party”) submits to the jurisdiction of any state or federal court
sitting in the County of New York in any dispute or action arising out of
or
relating to this Agreement and agrees that all claims in respect of such
dispute
or action may be heard and determined in any such court. Each Party
also agrees not to bring any dispute or action arising out of or relating
to
this Agreement in any other court. Each Party agrees that a final
judgment in any dispute or action so brought will be conclusive and may be
enforced by action on the judgment or in any other manner provided at law
(common, statutory or other) or in equity. Each Party waives any
defense of inconvenient forum to the maintenance of any dispute or action
so
brought and waives any bond, surety, or other security that might be required
of
any other Party with respect thereto.
(d) Rules
of Construction. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part
of or
to affect the meaning or interpretation of this Agreement. Words used
in this Agreement, regardless of the gender and number specifically used,
shall
be deemed and construed to include any other gender, masculine or feminine,
or
neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word “including” is not
limiting, and the word “or” is not exclusive.
(e) Parties
in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, and nothing in this Agreement, express or implied,
is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
5
(f) Counterparts. This
Agreement may be executed in one or more counterparts, and each of such
counterparts shall for all purposes be deemed to be an original, but all
such
counterparts together shall constitute but one instrument.
(g) Assignment. No
party hereto shall assign its rights and obligations under this Agreement
or any
part thereof, nor shall any party assign or delegate any of its rights or
duties
hereunder without the prior written consent of the other party, and any
assignment made without such consent shall be void. Except as
otherwise provided herein, this Agreement shall be binding upon and inure
to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(h) Amendment. This
Agreement may not be amended except by an instrument in writing signed on
behalf
of all the parties.
(i) Extension;
Waiver. Any party to this Agreement may extend the time for the
performance of any of the obligations or other acts of any of the other parties
to this Agreement or waive compliance by any other party with any of the
agreements or conditions contained herein or any breach thereof. Any
agreement on the part of any party to any such extension or waiver shall
be
valid only if set forth in an instrument in writing signed on behalf of such
party.
(j) Severability. If
any term, provision, covenant or restriction herein, or the application thereof
to any circumstance, shall, to any extent, be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions herein and the application thereof
to any
other circumstances shall remain in full force and effect, shall not in any
way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
6
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have
duly executed this Voting Agreement on the date first above
written.
|
THE
INVESTOR:
MATLINPATTERSON
FA ACQUISITION LLC
By:_________________________
Name:
Title:
THE
SHAREHOLDER:
_______________________________
XXXX
X. XXXXXXXX
|
7
Exhibit
A
to
Shares
Subject to Voting Control; Notice Address
A. Shares
of Common Stock Subject to Shareholder’s Voting
Control
1,106,807
shares of Common Stock
B. Address
for Notices
XXXX
X.
XXXXXXXX
000
Xxxxxxxx
Xxxxxx,
XX 00000
8
FORM
OF
IRREVOCABLE
PROXY AND POWER OF ATTORNEY
The
undersigned hereby appoints Xxxxxxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, and each
of
them separately, with full power of substitution, for and in the undersigned’s
name, to vote, express consent or disapproval, or otherwise act in such manner
(including pursuant to written consent, but excluding the right to assert,
perfect and prosecute dissenters’ rights of appraisal) and upon such matters as
Xxxxxxxxxxx Xxxxxxx and/or Xxxxx Xxxxxxxx or their respective proxies or
substitutes shall, in their sole discretion, deem proper with respect to
all of
the shares of Common Stock of First Albany Companies Inc., a New York
corporation, owned beneficially or of record by the undersigned.
The
proxy
granted hereby shall be irrevocable and may be exercised at any meeting of
Shareholders, notice of which is given, or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject
to
and in accordance with the terms and conditions of, the Voting Agreement,
dated
as of May 14, 2007, between the undersigned and Matlinpatterson FA Acquisition
LLC. This proxy is coupled with an interest sufficient in law to
support such proxy.
Dated: May
14, 2007
___________________________
XXXX
X.
XXXXXXXX
9
[EXECUTION
COPY]
THIS
VOTING AGREEMENT (“Agreement”), dated as of May 14, 2007, is made by and among
MATLINPATTERSON FA ACQUISITION LLC, a Delaware limited liability company
(the
“Investor”), and XXXXXX X. XXXXXXX (the “Shareholder”), an
individual and a shareholder of First Albany Companies Inc., a New York
corporation (the “Company”).
PRELIMINARY
STATEMENTS
WHEREAS,
the Company and Investor are entering into an Investment Agreement (the
“Investment Agreement”), dated as of May 14, 2007, providing for the
issuance and sale by the Company to the Purchasers (as defined therein),
and the
purchase by the Purchasers from the Company, of certain shares (the
“Purchased Shares”) of the common stock, par value $.01 per share, of the
Company (“Common Stock”) that upon issuance will represent a majority of
the outstanding Common Stock (such purchase, being sometimes hereinafter
referred to as the “Investment”) upon the terms and subject to the
conditions set forth in the Investment Agreement (as defined in the Investment
Agreement).
WHEREAS,
the Investment, the Charter Amendment (as defined in the Investment Agreement)
and certain other aspects of the Transactions (as defined in the Investment
Agreement) (collectively, the “Shareholders Approvals”, as more fully
defined in the Investment Agreement) are subject to the approval of the
holders
of the Common Stock as provided in the Investment Agreement and as required
under the New York Business Corporation Law (the “NYBCL”) and NASDAQ
rules.
WHEREAS,
the Shareholder beneficially owns and has the power to direct the voting
of the
shares of Common Stock set forth opposite his name on Exhibit A
hereto. As used herein, the term “Shares” includes all shares
of such Common Stock of which the Shareholder at any time prior to the
termination of this Agreement is the beneficial owner or is otherwise able
to
direct the voting thereof (including any such shares of Common Stock acquired
after the date hereof upon the exercise of any stock options, warrants
or
similar instruments or otherwise) and all securities issued or exchanged
with
respect to any such Shares upon any reclassification, recapitalization,
reorganization, merger, consolidation, spin-off, stock split, combination,
stock
or other dividend or any other change in the Company’s capital
structure.
WHEREAS,
to induce Investor to enter into the Investment Agreement and to consummate
the
Investment, the Shareholder has agreed, upon the terms and subject to the
conditions set forth herein, in his capacity as a Shareholder of the Company,
to
vote his Shares in favor of each of the Shareholder Approvals.
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency
and
adequacy of which are hereby acknowledged, the parties to this Agreement
agree
as follows:
1. Shareholders’
Representations and Warranties.
(a) The
Shareholder represents and warrants to the Investor that the Shareholder
(i) is the record (except as may be noted on Exhibit A hereto)
beneficial owner of that number of Shares set forth opposite its name set
forth
on Exhibit A hereto, free and clear of any mortgage, pledge, lien,
security interest, claim, restriction on voting or otherwise or other
encumbrance and (ii) has the right to vote or to direct the voting of such
Shares free of any restriction or limitation.
(b) Neither
the execution and delivery of this Agreement nor the performance by the
Shareholder of his obligations hereunder will result in a violation of,
or a
default under, or conflict with any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Shareholder
is a party or by which the Shareholder is bound or to which the Shares
are
subject, except, as would not prevent, delay or otherwise materially impair
the
Shareholder’s ability to perform his obligations
hereunder. Execution, delivery and performance of this Agreement by
the Shareholder will not violate, or require any consent, approval or notice
under, any provision of any judgment, order, decree, statute, law, rule
or
regulation applicable to the Shareholder or the Shares, except (x) for
any
reports under Sections 13(d) of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby
or (y)
as would not reasonably be expected to prevent, delay or otherwise materially
impair the Shareholder’s ability to perform his obligations
hereunder.
2. No
Other Proxies or Voting Trusts. The Shareholder hereby revokes
any and all proxies and voting instructions with respect to the Shares
previously given by Shareholder and agrees that he will not grant or give
any
other proxies or voting instructions with respect to the voting of the
Shares,
enter into any voting trust or other arrangement or agreement with respect
to
the voting of the Shares (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not
be
effective), or agree, in any manner, to vote the Shares for or against
any
proposal submitted to the Shareholders of the Company except in furtherance
of
the proposals set forth in paragraph 3.
3. Agreements
with Respect to the Shares.
(a) The
Shareholder agrees during the Term (as defined in Section 7 below) of this
Agreement:
(i) to
vote the Shares (x) in favor of each of the Shareholder Approvals at every
meeting of the Shareholders of the Company at which such matters are considered
and at every adjournment thereof, and in any other circumstances upon which
a
vote, consent or other approval (including by written consent) relating
to the
Investment Agreement and the Transactions contemplated thereby or the Charter
Amendment or any of the other Shareholder Approvals is sought and (y) with
respect to all other proposals submitted to the shareholders of the Company
which, directly or indirectly, in any way relate to the Investment or any
of the
other Transactions contemplated by the Investment Agreement, in such manner
as
Investor may direct; and
2
(ii) not
to solicit, encourage or recommend to other shareholders of the Company
that (w)
they vote their shares of Common Stock in any contrary manner, (x) they
refrain
from voting their shares, (y) they tender, exchange or otherwise dispose
of
their shares of Common Stock pursuant to a Competing Transaction (as hereinafter
defined), or (z) they attempt to exercise any statutory appraisal or other
similar rights they may have.
(b) Unless
otherwise instructed in writing by the Investor, during the Term of this
Agreement, Shareholder will vote the Shares against any Competing
Transaction.
(c) Except
with the prior written consent of the Investor, during the Term of this
Agreement, the Shareholder agrees that the Shareholder will not, and shall
use
his reasonable best efforts not to permit any employee, attorney, accountant,
investment banker or other agent or representative of the Shareholder to,
initiate, solicit, negotiate, encourage, or provide confidential information
in
order to facilitate any Competing Transaction.
(d) No
person executing this Agreement (or an affiliate thereof) who is or becomes
during the Term of this Agreement a director of the Company makes any agreement
or understanding herein in his capacity as such director. The
Shareholder is executing this Agreement solely in its capacity as the record
and
beneficial owner of the Shareholder’s Shares.
(e) For
purposes of this Agreement, a “Competing Transaction” means any of the
following (other than the transactions expressly provided for in and to
be
effected pursuant to this Agreement): (i) any merger, reorganization,
consolidation, share exchange, business combination, liquidation, dissolution,
recapitalization or similar transaction involving the Company; (ii) any
direct
or indirect acquisition or purchase, in a single transaction or series
of
related transactions, of (x) 20% or more of the consolidated gross assets
of the
Company and the Subsidiaries (as defined in the Investment Agreement),
taken as
a whole, (y) 20% or more of any class of voting securities of the Company
or any
Subsidiary (or any debt or equity securities convertible into or exercisable
or
exchangeable for such amount of voting securities) or (z) 15% or more of
any
class of voting securities of the Company or any Subsidiary (or any debt
or
equity securities convertible into or exercisable or exchangeable for such
amount of voting securities) if such securities carry the right, contractually
or otherwise, to appoint or designate any member or members of the Board;
or
(iii) any tender offer or exchange offer that, if consummated, would result
in
any Person or “group” (within the meaning of Section 13(d)(3) of the Exchange
Act) beneficially owning 20% or more of any class of voting securities
of the
Company.
4. Proxies. In
furtherance of the foregoing, the Shareholder is granting to Xxxxxxxxxxx
Xxxxxxx
and Xxxxx Xxxxxxxx, representatives of the Investor, and each of them,
with full
power of substitution, irrevocable proxies and powers of attorney (which
may be
in the form annexed hereto or such other form consistent with the terms
hereof
and thereof as Investor may specify) on the matters described in paragraph
3,
and to execute and deliver any written consents to fulfill such Shareholder’s
obligations under this Agreement. This proxy is coupled with an
interest and is irrevocable until the end of the Term of this Agreement,
at
which time it shall terminate.
3
5. Effect
of Stock Splits, Stock Dividends, Recapitalizations, Etc.. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Shares or the acquisition of shares of Common Stock or
other voting securities of the Company by the Shareholder, the number of
Shares
listed on Exhibit A beside the name of Shareholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach
to
any additional Shares or other voting securities of the Company issued
to or
acquired by the Shareholder.
6. Specific
Performance. The Shareholder acknowledges that it will be
impossible to measure in money the damage to Investor if the Shareholder
fails
to comply with the obligations imposed by this Agreement, and that, in
the event
of any such failure, Investor will not have an adequate remedy at law or
in
damages. Accordingly, the Shareholder agrees that injunctive relief
or any other equitable remedy, in addition to any remedies at law or damages,
is
the appropriate remedy for any such failure and will not oppose the granting
of
any such remedy on the basis that Investor has an adequate remedy at
law. The Shareholder agrees not to seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with Investor
seeking or obtaining such equitable relief.
7. Term
of Agreement; Termination.
(a) The
term of this Agreement shall commence on the date hereof and shall terminate
upon the earlier to occur of (i) the Closing (as defined in the Investment
Agreement), (ii) the due and proper termination of the Investment Agreement
in
accordance with its terms, or (iii) the mutual consent of the Investor
and the
Shareholder (such period from the date hereof until such termination is
referred
to herein as the “Term”). Upon such termination, no party
shall have any further obligations or liabilities hereunder.
(b) The
obligations of the Shareholder set forth in this Agreement shall not be
effective or binding upon the Shareholder until after such time as the
Investment Agreement is executed and delivered by the Investor and the
Company.
8. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter of this Agreement and supersedes
all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter of this
Agreement.
(b) Notices. Any
notice, request, instruction or other document to be given hereunder by
any
party to the others shall be in writing and shall be deemed to have been
duly
given on the next business day after the same is sent, if delivered personally
or sent by telecopy or overnight delivery, or five calendar days after
the same
is sent, if sent by registered or certified mail, return receipt requested,
postage prepaid, as set forth below, or to such other persons or addresses
as
may be designated in writing in accordance with the terms hereof by the
party to
receive such notice.
4
If
to the
Investor, to:
MatlinPatterson
FA Acquisition LLC
c/o
MatlinPatterson Global Advisers LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: General
Counsel
Fax:
(000) 000-0000
with
a copy by fax or messenger or
courier to:
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx
If
to
Shareholder, to the address set forth below Shareholder’s name on Exhibit
A.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as applied to contracts
made
and fully performed in such state without giving effect to the principles
of
conflict of laws thereof. Each party to this Agreement
(“Party”) submits to the jurisdiction of any state or federal court
sitting in the County of New York in any dispute or action arising out
of or
relating to this Agreement and agrees that all claims in respect of such
dispute
or action may be heard and determined in any such court. Each Party
also agrees not to bring any dispute or action arising out of or relating
to
this Agreement in any other court. Each Party agrees that a final
judgment in any dispute or action so brought will be conclusive and may
be
enforced by action on the judgment or in any other manner provided at law
(common, statutory or other) or in equity. Each Party waives any
defense of inconvenient forum to the maintenance of any dispute or action
so
brought and waives any bond, surety, or other security that might be required
of
any other Party with respect thereto.
(d) Rules
of Construction. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part
of or
to affect the meaning or interpretation of this Agreement. Words used
in this Agreement, regardless of the gender and number specifically used,
shall
be deemed and construed to include any other gender, masculine or feminine,
or
neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word “including” is not
limiting, and the word “or” is not exclusive.
(e) Parties
in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, and nothing in this Agreement, express or implied,
is
intended to confer upon any other person any rights or remedies of any
nature
whatsoever under or by reason of this Agreement.
5
(f) Counterparts. This
Agreement may be executed in one or more counterparts, and each of such
counterparts shall for all purposes be deemed to be an original, but all
such
counterparts together shall constitute but one instrument.
(g) Assignment. No
party hereto shall assign its rights and obligations under this Agreement
or any
part thereof, nor shall any party assign or delegate any of its rights
or duties
hereunder without the prior written consent of the other party, and any
assignment made without such consent shall be void. Except as
otherwise provided herein, this Agreement shall be binding upon and inure
to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(h) Amendment. This
Agreement may not be amended except by an instrument in writing signed
on behalf
of all the parties.
(i) Extension;
Waiver. Any party to this Agreement may extend the time for the
performance of any of the obligations or other acts of any of the other
parties
to this Agreement or waive compliance by any other party with any of the
agreements or conditions contained herein or any breach thereof. Any
agreement on the part of any party to any such extension or waiver shall
be
valid only if set forth in an instrument in writing signed on behalf of
such
party.
(j) Severability. If
any term, provision, covenant or restriction herein, or the application
thereof
to any circumstance, shall, to any extent, be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms,
provisions, covenants and restrictions herein and the application thereof
to any
other circumstances shall remain in full force and effect, shall not in
any way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
6
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have
duly executed this Voting Agreement on the date first above
written.
|
THE
INVESTOR:
MATLINPATTERSON
FA ACQUISITION LLC
By:_________________________
Name:
Title:
THE
SHAREHOLDER:
____________________________
XXXXXX
X. XXXXXXX
|
7
Exhibit
A
to
Shares
Subject to Voting Control; Notice Address
A. Shares
of Common Stock Subject to Shareholder’s Voting
Control
1,553,367
shares of Common Stock
B. Address
for Notices
XXXXXX
X.
XXXXXXX
000
Xxxxxxxx
Xxxxxx,
XX 00000
8
FORM
OF
IRREVOCABLE
PROXY AND POWER OF ATTORNEY
The
undersigned hereby appoints Xxxxxxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, and
each of
them separately, with full power of substitution, for and in the undersigned’s
name, to vote, express consent or disapproval, or otherwise act in such
manner
(including pursuant to written consent, but excluding the right to assert,
perfect and prosecute dissenters’ rights of appraisal) and upon such matters as
Xxxxxxxxxxx Xxxxxxx and/or Xxxxx Xxxxxxxx or their respective proxies or
substitutes shall, in their sole discretion, deem proper with respect to
all of
the shares of Common Stock of First Albany Companies Inc., a New York
corporation, owned beneficially or of record by the undersigned.
The
proxy
granted hereby shall be irrevocable and may be exercised at any meeting
of
Shareholders, notice of which is given, or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject
to
and in accordance with the terms and conditions of, the Voting Agreement,
dated
as of May 14, 2007, between the undersigned and Matlinpatterson FA Acquisition
LLC. This proxy is coupled with an interest sufficient in law to
support such proxy.
Dated: May
14, 2007
___________________________
XXXXXX
X.
XXXXXXX
9
[EXECUTION
COPY]
VOTING
AGREEMENT
THIS
VOTING AGREEMENT (“Agreement”), dated as of May 14, 2007, is made by and among
MATLINPATTERSON FA ACQUISITION LLC, a Delaware limited liability company
(the
“Investor”), and XXXXX XXXXXXXXX (the “Shareholder”), an
individual and a shareholder of First Albany Companies Inc., a New York
corporation (the “Company”).
PRELIMINARY
STATEMENTS
WHEREAS,
the Company and Investor are entering into an Investment Agreement (the
“Investment Agreement”), dated as of May 14, 2007, providing for the
issuance and sale by the Company to the Purchasers (as defined therein),
and the
purchase by the Purchasers from the Company, of certain shares (the
“Purchased Shares”) of the common stock, par value $.01 per share, of the
Company (“Common Stock”) that upon issuance will represent a majority of
the outstanding Common Stock (such purchase, being sometimes hereinafter
referred to as the “Investment”) upon the terms and subject to the
conditions set forth in the Investment Agreement (as defined in the Investment
Agreement).
WHEREAS,
the Investment, the Charter Amendment (as defined in the Investment Agreement)
and certain other aspects of the Transactions (as defined in the Investment
Agreement) (collectively, the “Shareholders Approvals”, as more fully
defined in the Investment Agreement) are subject to the approval of the
holders
of the Common Stock as provided in the Investment Agreement and as required
under the New York Business Corporation Law (the “NYBCL”) and NASDAQ
rules.
WHEREAS,
the Shareholder beneficially owns and has the power to direct the voting
of the
shares of Common Stock set forth opposite his name on Exhibit A
hereto. As used herein, the term “Shares” includes all shares
of such Common Stock of which the Shareholder at any time prior to the
termination of this Agreement is the beneficial owner or is otherwise able
to
direct the voting thereof (including any such shares of Common Stock acquired
after the date hereof upon the exercise of any stock options, warrants
or
similar instruments or otherwise) and all securities issued or exchanged
with
respect to any such Shares upon any reclassification, recapitalization,
reorganization, merger, consolidation, spin-off, stock split, combination,
stock
or other dividend or any other change in the Company’s capital
structure.
WHEREAS,
to induce Investor to enter into the Investment Agreement and to consummate
the
Investment, the Shareholder has agreed, upon the terms and subject to the
conditions set forth herein, in his capacity as a Shareholder of the Company,
to
vote his Shares in favor of each of the Shareholder Approvals.
NOW,
THEREFORE, for good and valuable consideration, the receipt, sufficiency
and
adequacy of which are hereby acknowledged, the parties to this Agreement
agree
as follows:
1. Shareholders’
Representations and Warranties.
(a) The
Shareholder represents and warrants to the Investor that the Shareholder
(i) is the record (except as may be noted on Exhibit A hereto)
beneficial owner of that number of Shares set forth opposite its name set
forth
on Exhibit A hereto, free and clear of any mortgage, pledge, lien,
security interest, claim, restriction on voting or otherwise or other
encumbrance and (ii) has the right to vote or to direct the voting of such
Shares free of any restriction or limitation.
(b) Neither
the execution and delivery of this Agreement nor the performance by the
Shareholder of his obligations hereunder will result in a violation of,
or a
default under, or conflict with any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which the Shareholder
is a party or by which the Shareholder is bound or to which the Shares
are
subject, except, as would not prevent, delay or otherwise materially impair
the
Shareholder’s ability to perform his obligations
hereunder. Execution, delivery and performance of this Agreement by
the Shareholder will not violate, or require any consent, approval or notice
under, any provision of any judgment, order, decree, statute, law, rule
or
regulation applicable to the Shareholder or the Shares, except (x) for
any
reports under Sections 13(d) of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated hereby
or (y)
as would not reasonably be expected to prevent, delay or otherwise materially
impair the Shareholder’s ability to perform his obligations
hereunder.
2. No
Other Proxies or Voting Trusts. The Shareholder hereby revokes
any and all proxies and voting instructions with respect to the Shares
previously given by Shareholder and agrees that he will not grant or give
any
other proxies or voting instructions with respect to the voting of the
Shares,
enter into any voting trust or other arrangement or agreement with respect
to
the voting of the Shares (and if given or executed, such proxies, voting
instructions, voting trust or other arrangement or agreement shall not
be
effective), or agree, in any manner, to vote the Shares for or against
any
proposal submitted to the Shareholders of the Company except in furtherance
of
the proposals set forth in paragraph 3.
3. Agreements
with Respect to the Shares.
(a) The
Shareholder agrees during the Term (as defined in Section 7 below) of this
Agreement:
(i) to
vote the Shares (x) in favor of each of the Shareholder Approvals at every
meeting of the Shareholders of the Company at which such matters are considered
and at every adjournment thereof, and in any other circumstances upon which
a
vote, consent or other approval (including by written consent) relating
to the
Investment Agreement and the Transactions contemplated thereby or the Charter
Amendment or any of the other Shareholder Approvals is sought and (y) with
respect to all other proposals submitted to the shareholders of the Company
which, directly or indirectly, in any way relate to the Investment or any
of the
other Transactions contemplated by the Investment Agreement, in such manner
as
Investor may direct; and
2
(ii) not
to solicit, encourage or recommend to other shareholders of the Company
that (w)
they vote their shares of Common Stock in any contrary manner, (x) they
refrain
from voting their shares, (y) they tender, exchange or otherwise dispose
of
their shares of Common Stock pursuant to a Competing Transaction (as hereinafter
defined), or (z) they attempt to exercise any statutory appraisal or other
similar rights they may have.
(b) Unless
otherwise instructed in writing by the Investor, during the Term of this
Agreement, Shareholder will vote the Shares against any Competing
Transaction.
(c) Except
with the prior written consent of the Investor, during the Term of this
Agreement, the Shareholder agrees that the Shareholder will not, and shall
use
his reasonable best efforts not to permit any employee, attorney, accountant,
investment banker or other agent or representative of the Shareholder to,
initiate, solicit, negotiate, encourage, or provide confidential information
in
order to facilitate any Competing Transaction.
(d) No
person executing this Agreement (or an affiliate thereof) who is or becomes
during the Term of this Agreement a director of the Company makes any agreement
or understanding herein in his capacity as such director. The
Shareholder is executing this Agreement solely in its capacity as the record
and
beneficial owner of the Shareholder’s Shares.
(e) For
purposes of this Agreement, a “Competing Transaction” means any of the
following (other than the transactions expressly provided for in and to
be
effected pursuant to this Agreement): (i) any merger, reorganization,
consolidation, share exchange, business combination, liquidation, dissolution,
recapitalization or similar transaction involving the Company; (ii) any
direct
or indirect acquisition or purchase, in a single transaction or series
of
related transactions, of (x) 20% or more of the consolidated gross assets
of the
Company and the Subsidiaries (as defined in the Investment Agreement),
taken as
a whole, (y) 20% or more of any class of voting securities of the Company
or any
Subsidiary (or any debt or equity securities convertible into or exercisable
or
exchangeable for such amount of voting securities) or (z) 15% or more of
any
class of voting securities of the Company or any Subsidiary (or any debt
or
equity securities convertible into or exercisable or exchangeable for such
amount of voting securities) if such securities carry the right, contractually
or otherwise, to appoint or designate any member or members of the Board;
or
(iii) any tender offer or exchange offer that, if consummated, would result
in
any Person or “group” (within the meaning of Section 13(d)(3) of the Exchange
Act) beneficially owning 20% or more of any class of voting securities
of the
Company.
4. Proxies. In
furtherance of the foregoing, the Shareholder is granting to Xxxxxxxxxxx
Xxxxxxx
and Xxxxx Xxxxxxxx, representatives of the Investor, and each of them,
with full
power of substitution, irrevocable proxies and powers of attorney (which
may be
in the form annexed hereto or such other form consistent with the terms
hereof
and thereof as Investor may specify) on the matters described in paragraph
3,
and to execute and deliver any written consents to fulfill such Shareholder’s
obligations under this Agreement. This proxy is coupled with an
interest and is irrevocable until the end of the Term of this Agreement,
at
which time it shall terminate.
3
5. Effect
of Stock Splits, Stock Dividends, Recapitalizations, Etc.. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Shares or the acquisition of shares of Common Stock or
other voting securities of the Company by the Shareholder, the number of
Shares
listed on Exhibit A beside the name of Shareholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach
to
any additional Shares or other voting securities of the Company issued
to or
acquired by the Shareholder.
6. Specific
Performance. The Shareholder acknowledges that it will be
impossible to measure in money the damage to Investor if the Shareholder
fails
to comply with the obligations imposed by this Agreement, and that, in
the event
of any such failure, Investor will not have an adequate remedy at law or
in
damages. Accordingly, the Shareholder agrees that injunctive relief
or any other equitable remedy, in addition to any remedies at law or damages,
is
the appropriate remedy for any such failure and will not oppose the granting
of
any such remedy on the basis that Investor has an adequate remedy at
law. The Shareholder agrees not to seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with Investor
seeking or obtaining such equitable relief.
7. Term
of Agreement; Termination.
(a) The
term of this Agreement shall commence on the date hereof and shall terminate
upon the earlier to occur of (i) the Closing (as defined in the Investment
Agreement), (ii) the due and proper termination of the Investment Agreement
in
accordance with its terms, or (iii) the mutual consent of the Investor
and the
Shareholder (such period from the date hereof until such termination is
referred
to herein as the “Term”). Upon such termination, no party
shall have any further obligations or liabilities hereunder.
(b) The
obligations of the Shareholder set forth in this Agreement shall not be
effective or binding upon the Shareholder until after such time as the
Investment Agreement is executed and delivered by the Investor and the
Company.
8. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter of this Agreement and supersedes
all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter of this
Agreement.
(b) Notices. Any
notice, request, instruction or other document to be given hereunder by
any
party to the others shall be in writing and shall be deemed to have been
duly
given on the next business day after the same is sent, if delivered personally
or sent by telecopy or overnight delivery, or five calendar days after
the same
is sent, if sent by registered or certified mail, return receipt requested,
postage prepaid, as set forth below, or to such other persons or addresses
as
may be designated in writing in accordance with the terms hereof by the
party to
receive such notice.
4
If
to the
Investor, to:
MatlinPatterson
FA Acquisition LLC
c/o
MatlinPatterson Global Advisers LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: General
Counsel
Fax:
(000) 000-0000
with
a
copy by fax or messenger or courier to:
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx
If
to
Shareholder, to the address set forth below Shareholder’s name on Exhibit
A.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York as applied to contracts
made
and fully performed in such state without giving effect to the principles
of
conflict of laws thereof. Each party to this Agreement
(“Party”) submits to the jurisdiction of any state or federal court
sitting in the County of New York in any dispute or action arising out
of or
relating to this Agreement and agrees that all claims in respect of such
dispute
or action may be heard and determined in any such court. Each Party
also agrees not to bring any dispute or action arising out of or relating
to
this Agreement in any other court. Each Party agrees that a final
judgment in any dispute or action so brought will be conclusive and may
be
enforced by action on the judgment or in any other manner provided at law
(common, statutory or other) or in equity. Each Party waives any
defense of inconvenient forum to the maintenance of any dispute or action
so
brought and waives any bond, surety, or other security that might be required
of
any other Party with respect thereto.
(d) Rules
of Construction. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part
of or
to affect the meaning or interpretation of this Agreement. Words used
in this Agreement, regardless of the gender and number specifically used,
shall
be deemed and construed to include any other gender, masculine or feminine,
or
neuter, and any other number, singular or plural, as the context
requires. As used in this Agreement, the word “including” is not
limiting, and the word “or” is not exclusive.
(e) Parties
in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties to this Agreement and their legal
successors-in-interest, and nothing in this Agreement, express or implied,
is
intended to confer upon any other person any rights or remedies of any
nature
whatsoever under or by reason of this Agreement.
5
(f) Counterparts. This
Agreement may be executed in one or more counterparts, and each of such
counterparts shall for all purposes be deemed to be an original, but all
such
counterparts together shall constitute but one instrument.
(g) Assignment. No
party hereto shall assign its rights and obligations under this Agreement
or any
part thereof, nor shall any party assign or delegate any of its rights
or duties
hereunder without the prior written consent of the other party, and any
assignment made without such consent shall be void. Except as
otherwise provided herein, this Agreement shall be binding upon and inure
to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(h) Amendment. This
Agreement may not be amended except by an instrument in writing signed
on behalf
of all the parties.
(i) Extension;
Waiver. Any party to this Agreement may extend the time for the
performance of any of the obligations or other acts of any of the other
parties
to this Agreement or waive compliance by any other party with any of the
agreements or conditions contained herein or any breach thereof. Any
agreement on the part of any party to any such extension or waiver shall
be
valid only if set forth in an instrument in writing signed on behalf of
such
party.
(j) Severability. If
any term, provision, covenant or restriction herein, or the application
thereof
to any circumstance, shall, to any extent, be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms,
provisions, covenants and restrictions herein and the application thereof
to any
other circumstances shall remain in full force and effect, shall not in
any way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
6
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have
duly executed this Voting Agreement on the date first above
written.
|
THE
INVESTOR:
MATLINPATTERSON
FA ACQUISITION LLC
By:_________________________
Name:
Title:
THE
SHAREHOLDER:
____________________________
XXXXX
XXXXXXXXX
|
7
Exhibit
A
to
Voting
Agreement
Shares
Subject to Voting Control; Notice Address
A. Shares
of Common Stock Subject to Shareholder’s Voting
Control
394,802
shares of Common Stock
B. Address
for Notices
XXXXX
XXXXXXXXX
000
Xxxxxxxx
Xxxxxx,
XX 00000
8
FORM
OF
IRREVOCABLE
PROXY AND POWER OF ATTORNEY
The
undersigned hereby appoints Xxxxxxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx, and
each of
them separately, with full power of substitution, for and in the undersigned’s
name, to vote, express consent or disapproval, or otherwise act in such
manner
(including pursuant to written consent, but excluding the right to assert,
perfect and prosecute dissenters’ rights of appraisal) and upon such matters as
Xxxxxxxxxxx Xxxxxxx and/or Xxxxx Xxxxxxxx or their respective proxies or
substitutes shall, in their sole discretion, deem proper with respect to
all of
the shares of Common Stock of First Albany Companies Inc., a New York
corporation, owned beneficially or of record by the undersigned.
The
proxy
granted hereby shall be irrevocable and may be exercised at any meeting
of
Shareholders, notice of which is given, or in respect of any written consent
which is solicited prior to the due and proper termination of, and subject
to
and in accordance with the terms and conditions of, the Voting Agreement,
dated
as of May 14, 2007, between the undersigned and Matlinpatterson FA Acquisition
LLC. This proxy is coupled with an interest sufficient in law to
support such proxy.
Dated: May
14, 2007
___________________________
XXXXX
XXXXXXXXX
9
