ADDENDUM TO THE NON-COMPETE AND NON-SOLICIT AGREEMENT DATED SEPTEMBER 21, 2007
EXHIBIT 10.71
ADDENDUM
TO THE
NON-COMPETE
AND NON-SOLICIT AGREEMENT DATED SEPTEMBER 21, 2007
This
Addendum to the Non-Compete and Non-Solicit Agreement dated September
21, 2007 (the "Non-Compete and Non-Solicit Agreement") entered into by and
between First Albany Companies Inc. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇ ("Key Employee
Partner"), is made this _ day of September, 2007. All terms not otherwise
defined herein shall have the meanings" ascribed to such terms in the
Non-Compete and Non-
Solicit
Agreement.
WHEREAS,
First Albany Companies, Inc., its subsidiaries, affiliates, and successors
("First Albany") and the Key Employee Partner desire to amend and supplement
certain provisions of the Non-Compete and Non-Solicit Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and b promises hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, First Albany and the Key Employee
Partner hereby agree as follows:
1. Definition of
"cause". The term "cause" used in the Non-Compete and Non-Solicit
Agreement shall have the meaning ascribed to such term in the First Albany
Companies Inc. 2007 Incentive Compensation Plan (the "Plan").
2. Inapplicability of
Non-Compete and Non-Solicit Covenant in Certain Circumstances. In
addition to those circumstances provided in Paragraph 3 of the Non-Compete and
Non-Solicit Agreement, the Non-Compete Covenant shall not apply to the Key
Employee Partner following any termination of her employment by Key Employee
Partner for "Good Reason" as herein defined. Good Reason shall be defined as any
occurrence of any of the events specified in subsections (A)-(D) of this
Paragraph 2,
without
Key Employee Partner's prior written consent.
(A) Any
reduction in Key Employee Partner's base salary, or any failure to pay bonuses
or other material amounts due Key Employee Partner;
(B) The
assignment to Key Employee Partner of any duties inconsistent in any material
respect with her position or with her authority, duties or responsibilities as
General Counsel, or any other action by First Albany which results in a
diminution in such position, authority, duties or responsibilities, or reporting
relationship, excluding for this purpose any immaterial and inadvertent action
not taken in bad faith and remedied by First Albany promptly (but not later than
ten (10) days after receiving notice from the Key Employee
Partner);
(C) Any
change in the place of Key Employee Partner's principal office location to a
location outside of a ten-mile radius of Albany, New York, or outside of a
ten-mile radius from any alternate location upon which the parties mutually
agree;
(D)
Any failure by First Albany to require a successor to assume First Albany's
contractual obligations to Key Employee Partner.
3. Employment in a Private Law
Firm. Paragraph 1 of the Non-Compete and Non-Solicit Agreement
notwithstanding, Key Employee Partner may be employed by or be a member of a
private law firm, without restriction. Such employment shall not be considered a
"Forfeiture Event" within the meaning of any Restricted Stock Units Agreement
between the parties.
4. Forfeiture of RSU's.
Paragraph 4 of the Non-Compete and Non-Solicit Agreement shall apply only in the
event that the breach is material.
5. Definition of
"Competitor." The phrase "financial advisory firm" in the definition of
"Competitor" shall be construed to exclude financial advisory firms that are
primarily retail in nature.
6. Continued Vesting of RSU's
if Termination for Good Reason. The terms of Paragraph 4(b) of the
parties' September, 2007 Restricted Stock Units Agreement shall apply not only
in the event of a Retirement or a Termination by the Company Not For Cause, but
also in the event of a Termination by the Key Employee Partner for Good Reason.
Any future Restricted Stock Units Agreement between the parties shall be
construed to incorporate this provision, unless it is specifically stated
otherwise.
7. Assignment. This
Agreement shall be binding upon and shall inure to the benefit of First Albany,
its successors and any person, firm, corporation or other entity that succeeds
to all or substantially all of the business, assets or property of the Company,
including without limitation in connection with any sale of the Company. This
Agreement may be assigned, in whole but not in part, by the Company to any
successor to the Company or its business or any subsidiary or Affiliate of the
Company; provided, that such assignment does not relieve the Company of its
obligations under this Agreement if the assignee fails to perform. Key Employee
Partner may not assign any rights or delegate any duties under this
Agreement.
8. Waiver. The waiver by
either party of a breach of any provision of this Agreement shall not operate as
or be construed as a waiver of any prior or subsequent breach
thereof.
9. Amendment or
Modification. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Key Employee Partner and a duly authorized officer of First
Albany.
10. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to choice of law or conflict of law
principles.
11. Severability. The
invalidity or unenforceability of any provision of this Agreernent shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
12.
Notices. Any
notices required or permitted to be given hereunder shall be sufficient if in
writing, and if delivered by hand, by courier, by facsimile, or sent by
certified mail, return receipt requested, prepaid, to the address set forth
below or such other address as either party may from time to time designate in
writing to the other and shall be deemed given as of the date of the delivery if
delivered by hand or by courier, or if mailed, four (4) days after the date of
mailing.
If to Key
Employee ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇
Partner: ▇▇
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
If to
Company: First
Albany Companies Inc.
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13. Entire Agreement and Binding
Effect. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto in respect of such subject matter. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, permitted
assigns,
and legal representatives.
14. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument, and in pleading or providing any provision of this Agreement it
shall not be necessary to produce more than one of such
counterparts.
15. Headings. The Section
headings appearing in this Agreement are for reference purposes only and shall
not be considered a part of this Agreement or in any way modify, amend or affect
its provisions.
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16. Dispute
Resolution. All disputes arising out of, or related to, this
Agreement, or the breach thereof, shall be settled by binding arbitration in the
City of New York, New York, in accordance with the applicable rules then in
effect of the American Arbitration Association for employment disputes, and the
arbitrator's decision shall be binding and final, and judgment upon the award
rendered may be entered in any
court
having jurisdiction thereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 21
day of September, 2007.
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FIRST ALBANY COMPANIES INC.
/s/ ▇▇▇▇▇▇▇▇
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