EX-10.2



 










	 	 	 
	First Albany Companies
	677 Broadway
	Albany, NY 12207
	Facsimile:

	 	518-447-8606
	Attention:

	 	General Counsel
	 
	 	 
	with a copy to:
	 
	 	 
	Dewey Ballantine LLP
	1301 Avenue of the Americas
	New York, NY 10019
	Facsimile:

	 	212-259-6333
	Attention:

	 	Donald J. Murray
	 

	 	Christopher P. Peterson






July 25, 2007




Ladies and Gentlemen:




Re:
Notice and Waiver




     We refer to the Asset Purchase Agreement dated as of March 6, 2007 among DEPFA BANK plc
(“Buyer”), First Albany Capital Inc. (“Seller”) and First Albany Companies Inc.
(“Parent”) (the “Asset Purchase Agreement”). Capitalized terms used but not
otherwise defined herein shall have the meanings given to them in the Asset Purchase Agreement.



     1. Section 4.1. Section 4.1 of the Asset Purchase Agreement provides the Closing
shall be consummated on the third Business Day following satisfaction or waiver of all the
conditions set forth in Articles IX and X of the Asset Purchase Agreement, or at such other place
or at such other date and time as shall be agreed upon by Buyer and Seller. Buyer requests, and
each of Seller and Parent agrees that, the Closing shall be consummated on the tenth Business Day
following the satisfaction or waiver of all the conditions set forth in Articles IX and X of the
Asset Purchase Agreement, unless otherwise agreed by the parties.



     2. Section 8.4(a). Section 8.4(a) of the Asset Purchase Agreement provides that
prior to the Closing Date, Buyer or its Affiliate shall offer to interview each of the Employees
who are in good standing with Seller with respect to a potential offer of employment. Pursuant to
Section 13.8 of the Asset Purchase Agreement, which provides that any provision of the Asset
Purchase Agreement may be waived, Buyer requests that each of Seller and Parent agree to waive
Buyer’s obligation set forth in Section 8.4(a) to offer interviews prior to the Closing Date to
each of the Employees who are in good standing with Seller.



     Each of Seller and Parent agree to waive Buyer’s obligation set forth in Section 8.4(a) to
offer interviews prior to the Closing Date to each of the Employees who are in good standing with
Seller, subject to Buyer providing to each Employee who is in good standing, for completion and
return to Buyer (or its Affiliate) within a specified period of time prior to the Closing Date, a
standard form of job application (substantially in the form of Exhibit A hereto) and a current job
description template.





	 	 	 
	DEPFA BANK plc
	1 Commons Street
	Dublin 1, Ireland
	Phone:

	 	+353 1 792 2222
	Fax:

	 	+353 1 792 2211
	info@depfa.com
	www.depfa.com









Company Secretary:

Elaine Tiernan

Registered in Ireland

Company no. 348819

VAT no. IE6368819N







Board of Directors: G. Bruckermann, Dr. R. Brantner,

Prof. Dr. A. Hemmeirath, Dr. T. M. Kolbeck, H. W. Reich,

Prof. Dr. Dr. h.c. muh. H. Tietmeyer (all German)

J. Poos (Lux), D. M. Cahillanc, M. O’Connell (both Irish)









 









 







     Together with such job application, Buyer will provide to each Employee, for completion and
return to Seller within a specified period of time prior to the Closing Date, a form of request and
consent (the “Request and Consent”) (substantially in the form of Exhibit
B hereto) requesting Seller’s Human Resources Department to deliver to Buyer, and consenting to the
delivery of, the current and any deferred compensation details for such Employee, including details
of the last bonus awarded to such Employee. Seller will only deliver to Buyer the current and any
deferred compensation details, including details of the last bonuses awarded, for those Employees
who deliver (or cause to be delivered) the Request and Consent to Seller. Buyer shall have no
right to receive from Seller’s Human Resources Department the current or any deferred compensation
details, including details of the last bonuses awarded, for those Employees who do not deliver (or
cause to be delivered) the Request and Consent to Seller.



     3. Consents Regarding “First Albany” Name. In accordance with the terms of and
conditions of Section 13.4(a) of the Asset Purchase Agreement, upon written notice to Parent and
Seller, Buyer shall be permitted to assign the Asset Purchase Agreement and the rights and
obligations under it to a wholly owned direct or indirect corporation or limited liability company
organized under the laws of the United States or any state thereof (the “Subsidiary”).
Buyer requests, and each of Seller and Parent consents that, Buyer shall be permitted to change the
name of the Subsidiary to include the words “First Albany” effective at the close of business on
the Business Day prior to Closing (including filing an amendment to the organizational documents
with the Secretary of State of the State of New York to effect such
name change); provided, that if
the Closing shall not occur for any reason on the scheduled Closing Date, Buyer promptly shall
cause the removal of the words “First Albany” from the name of the Subsidiary.



Furthermore, Buyer requests, and each of Seller and Parent consents that:





	 	(i)	 	Buyer shall be permitted to communicate with third parties the scheduled date of the
Closing (once known) and, that upon Closing, (x) Buyer intends to operate the Subsidiary
under a name that includes the words “First Albany” and (y) Buyer will have new third party
clearing arrangements in relation to the acquired Division,
provided, that Buyer shall
inform Seller and Parent of the third parties Buyer intends to communicate with (other than
(a) relevant regulators, (b) clients of Seller, (c) counterparties of Seller, Buyer or the
Subsidiary, (d) service providers of Seller, Buyer or the Subsidiary or (e) U.S.
broker-dealers or other market participants with whom Seller interacts in the ordinary
course of business (collectively, “Permitted Parties”)) and such communication to
such third parties (other than Permitted Parties), and the form of any written
communication to such third parties and Permitted Parties (other than relevant regulators),
shall be subject to each of Seller’s and Parent’s prior written approval, not to be
unreasonably withheld or delayed; and
	 
	 	(ii)	 	each of Seller and Parent shall cooperate in good faith on Buyer’s reasonable requests
with respect to the form of Parent’s or Seller’s communications to third parties in
relation to any name change of Seller effected prior to Closing before any such
communications shall be made by Seller or Parent to such third parties.





     This waiver shall be effective upon execution and delivery by Seller and Parent. This waiver
shall be governed by, and construed in accordance with, the internal laws (as opposed to the
conflicts of law provisions) of the State of New York. This waiver may be executed and delivered
(including by facsimile transmission) in several counterparts, each of which is an original, but
all of which taken together constitute one and the same agreement. The execution and delivery of
this waiver by each of Seller and Parent represents its irrevocable



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consent to, and acknowledgement
of, the terms contained herein. The execution and delivery of this waiver shall not, except as
specifically provided herein, constitute a waiver of any other provision of the Asset Purchase
Agreement. Except as specifically provided herein, the Asset Purchase Agreement shall remain in
full force and effect.



[SIGNATURE PAGE FOLLOWS]





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Please indicate your agreement to the foregoing by signing below.




	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	DEPFA BANK plc
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Willie Holohan
	 

	 	 	 	 
	 

	 	Name:
	 	 Willie Holohan
	 

	 	Title:
	 	MANAGING DIRECTOR
	 
	 	 	 	 
	 

	 	By:
	 	/s/ John Andrade
	 

	 	 	 	 
	 

	 	Name:
	 	John Andrade
	 

	 	Title:	 	Director






We confirm our agreement and acceptance of the foregoing.




	 	 	 	 	 
	FIRST ALBANY COMPANIES INC.	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:

	 	/s/ Peter J. McNierney	 	 
	 

	 	 	 	 
	Name:

	 	Peter J. McNierney	 	 
	Title:

	 	Chief Executive Officer
	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	FIRST ALBANY CAPITAL INC.	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:

	 	/s/ Peter J. McNierney	 	 
	 

	 	 	 	 
	Name:

	 	Peter J. McNierney	 	 
	Title:

	 	Chief Executive Officer	 	 


















 










 









 











 










 







	 	 	 
	 

	 	July ___, 2007






CONFIDENTIAL




First Albany Companies Inc.

1 Penn Plaza

New York, NY 100119-4000



Attention: Human Resources Department



Ladies and Gentlemen: 




     Re Request and Consent



     Reference is hereby made to the Asset Purchase Agreement (the “Asset Purchase Agreement”),
dated as of March 6, 2007, among DEPFA BANK plc, an Irish public limited company (“DEPFA”), First
Albany Capital Inc., a New York corporation and First Albany Companies Inc., a New York corporation
(the “Company”), pursuant to which DEPFA has agreed to purchase certain assets of the Municipal
Capital Markets Group of the Company. Capitalized terms used but not otherwise defined herein
shall have the meanings given to them in the Asset Purchase Agreement.



     In connection with the sale of the assets of the Municipal Capital Markets Group to DEPFA, the
undersigned Employee wishes to submit an application for employment with DEPFA or its wholly-owned
subsidiary. The Employee hereby requests that the Company deliver to DEPFA the current and any
deferred compensation details for the Employee, including details of the last bonus awarded to the
Employee (such current and deferred compensation details and last bonus awarded, the “Compensation
Information”). The Employee understands that without his/her consent, the Company will not deliver
the Employee’s Compensation Information to DEPFA.



     The execution and delivery of this letter by the Employee represents the Employee’s
irrevocable consent to, and agreement and acknowledgment of, the terms contained herein and the
Employee hereby waives all rights related to the delivery of the Employee’s Compensation
Information to DEPFA.



     This letter shall be effective upon execution by the Employee. This letter shall be governed
by and construed in accordance with the laws of the State of New York.



	 	 	 
	 

	 	Very truly yours,
	 
	 	 
	 

	 	EMPLOYEE
	 
	 	 
	 
	 	 
	 

	 	 
Name:
	 

	 	Address:
	 
	 	 
	 

	 	Telephone: