CO-INVESTOR JOINDER
AGREEMENT
THIS
CO-INVESTOR JOINDER AGREEMENT (“ Co-Investor Joinder
Agreement ”), dated as of September 21, 2007, by and
among FIRST ALBANY COMPANIES INC., a New York corporation (the
“ Company ”), MATLINPATTERSON FA ACQUISITION
LLC, a Delaware limited liability company (the “
Investor ”), and ROBERT M. TIRSCHWELL (the “
Co-Investor ”).
A. The
Investor and the Company have entered into an Investment Agreement
dated as of May 14, 2007 (the “ Investment
Agreement ”).
B. Pursuant
to the Investment Agreement, the Investor has the right to
designate one or more Co-Investors to purchase a portion of the
Purchased Shares in the place of the Investor.
C. The
Co-Investor and the Investor have entered into a Co-Investment
Agreement dated as of September 21, 2007 pursuant to which the
Co-Investor and the Investor have agreed that the Co-Investor will
become a “Co-Investor” for the purposes of the
Investment Agreement and by notice to the Company of even date
therewith, the Investor has designated the Co-Investor as such a
“Co-Investor” for such purposes.
D. The
parties are entering into this Co-Investor Joinder Agreement
pursuant to Section 2.1(c) of the Investment
Agreement.
NOW THEREFORE, in
consideration of the mutual promises and covenants set forth
herein, and for such other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1.
Definitions . Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Investment
Agreement.
2.
Purchase and Sale of Stock . Subject to the terms and
conditions hereof, and the closing conditions set forth in the
Investment Agreement, at the Closing, the Company shall issue and
sell, and the Co-Investor shall purchase, the number of Purchased
Shares (the “ Co-Investor Shares ”)
corresponding to an aggregate purchase price of $450,000 (the
“ Co-Investor Purchase Price ”), all on the
terms set forth in the Investment Agreement. At the Closing, the
Co-Investor shall pay the Company the Co-Investor Purchase Price by
instructing the Company to debit the brokerage account maintained
by the Co-Investor with the Company in the amount of such
Co-Investor Purchase Price.
3. Joinder
. The Co-Investor hereby agrees to become a party to the Investment
Agreement as a “Purchaser” thereunder, and agrees to
perform, and to be bound by, all the obligations of a Purchaser
under the Investment Agreement. The Co-Investor hereby acknowledges
that he has received and reviewed a complete copy of the Investment
Agreement and the Company’s proxy statement dated
August 31, 2007 for its annual meeting to be held
on
1
September 21, 2007. The Co-Investor also
agrees to be bound by the Investor Confidentiality Agreement (a
copy of which the Co-Investor acknowledges having received and
reviewed) as if he were a party thereto.
4.
Representations and Warranties . The Co-Investor hereby
represents and warrants to the Company as follows:
The Co-Investor
has full capacity to execute deliver this Co-Investor Joinder
Agreement and perform his obligations as a Purchaser under the
Investment Agreement.
4.2.
Authorization; Execution and Enforceability .
This Co-Investor
Joinder Agreement has been duly executed and delivered by the
Co-Investor and constitutes, and by his execution hereof the
Investment Agreement constitutes, the legal, valid and binding
obligation of the Co-Investor, enforceable against the Co-Investor
in accordance with its terms. The Registration Rights Agreement,
when executed and delivered by the Co-Investor as contemplated in
the Investment Agreement, will have been duly executed and
delivered by the Co-Investor and will constitute the legal, valid
and binding obligation of the Co-Investor, enforceable against the
Co-Investor in accordance with its terms
4.3. No
Conflict; Consents and Approvals .
(a) Neither
the execution, delivery or performance by the Co-Investor of this
Agreement, the Registration Rights Agreement or the Co-Investor
Joinder Agreement (or the performance by the Co-Investor of the
Investment Agreement to which the Co-Investor will become a party
pursuant thereto), nor the consummation of any of the Transactions,
will result in a breach of, constitute (with or without due notice
or lapse of time or both) a default under, result in the
acceleration of, create in any party any right to accelerate,
terminate, modify or cancel, or require any notice, consent or
waiver under, any Contractual Obligation or any Requirement of Law
applicable to the Co-Investor or any of his properties or assets,
other than a breach, default, acceleration, right, notice, consent
or waiver that is not material.
(b) The
Co-Investor is not required to obtain any consent, authorization or
approval of, or make any filing or registration with, any
Governmental Authority or any self regulatory organization in order
for the Co-Investor to execute, deliver and perform the
Registration Rights Agreement and this Co-Investor Joinder
Agreement (and to perform the Investment Agreement to which the
Co-Investor will become a party pursuant hereto), or to consummate
the Transactions.
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