EX-10.2: CO-INVESTOR JOINDER AGREEMENTAssumption Agreement |
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Exhibit 10.2
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. FINE (the “
Co-Investor ”).
RECITALS
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 $130,000 (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:
4.1. Capacity .
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 t






