CONFIDENTIALITY AGREEMENT
EXHIBIT
4
PERSONAL
AND CONFIDENTIAL
March
20,
2007
MatlinPatterson
Global Advisers LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxxxxx X. Xxxxxxx, Partner
Dear
Sirs
or Madams:
You
have
requested information concerning First Albany Companies Inc. (the "Company")
in
connection with your consideration of a possible transaction with the Company
(a
"Transaction"). As a condition to our furnishing such information to you,
we are
requiring that you agree, as set forth below, to treat confidentially such
information and any other information that the Company, its agents or its
representatives (including attorneys and financial advisors) furnishes to
you or
your directors, officers, employees, agents, advisors, prospective bank or
institutional lenders, affiliates or representatives of your agents, advisors
or
prospective lenders (all of the foregoing collectively referred to as "your
Representatives"), whether furnished before or after the date of this letter,
and all notes, analyses, compilations, studies or other documents, whether
prepared by you or others, which contain or otherwise reflect such information
(collectively, the "Evaluation Material").
The
term
"Evaluation Material" does not include information which (i) becomes generally
available to the public other than as a result of a disclosure by you or
your
Representatives, (ii) was available to you on a non-confidential basis prior
to
its disclosure to you by the Company, its representatives or its agents,
or
(iii) becomes available to you on a non-confidential basis from a source
other
than the Company, its representatives or its agents, provided that such source
is not bound by a confidentiality agreement with the Company, its
representatives or its agents or otherwise prohibited from transmitting the
information to you or your Representatives by a contractual, legal or fiduciary
obligation.
It
is
understood that you may disclose any of the Evaluation Material to those
of your
Representatives who require such material for the purpose of evaluating a
possible Transaction (provided that such Representatives shall be informed
by
you of the confidential nature of the Evaluation Material). You agree that
the
Evaluation Material will be kept confidential by you and your Representatives
and, except with the specific prior written consent of the Company or as
expressly otherwise permitted by the terms hereof, will not be disclosed
by you
or your Representatives. You further agree that you and your Representatives
will not use any of the Evaluation Material for any reason or purpose other
than
to evaluate a possible Transaction.
Without
the prior written consent of the Company, you and your Representatives will
not
disclose to any person (1) the fact that the Evaluation Material has been
made
available to you or that you have inspected any portion of the Evaluation
Material, (2) the fact that any discussions
or negotiations are taking place concerning a possible Transaction, or (3)
any
of the terms, conditions or other facts with respect to any possible
Transaction, including the status thereof, unless and only to the extent
that
such disclosure (after making reasonable efforts to avoid such disclosure
and
after advising and consulting with the Company about your intention to make,
and
the proposed contents of, such disclosure and subject to the next succeeding
paragraph below) is, in the opinion of your counsel, required by applicable
laws. The term "person" as used in this letter shall be broadly interpreted
to
include without limitation any corporation, company, partnership and
individual.
In
the
event that you or any of your Representatives are requested or required (by
applicable laws, oral questions, interrogatories, requests for information
or
documents, subpoena, Civil Investigative Demand or similar process) to disclose
any of the Evaluation Material, it is agreed that you or such Representative,
as
the case may be, will provide the Company with prompt notice of such request(s)
so that it may seek an appropriate protective order or other appropriate
remedy
and/or waive your or such Representative's compliance with the provisions
of
this Agreement. In the event that such notice to the Company is not legally
permissible, such protective order or other remedy is not obtained, or that
the
Company grants a waiver hereunder, you or such Representative may furnish
that
portion (and only that portion) of the Evaluation Material which, in the
written
opinion of your counsel, you are legally compelled to disclose and will exercise
your best efforts to obtain reliable assurance that confidential treatment
will
be accorded any Evaluation Material so furnished.
In
addition, you hereby acknowledge that you are aware (and that your
Representatives who are apprised of this matter have been or will be advised)
that the United States securities laws restrict persons with material non-public
information about a company obtained directly or indirectly from that company
from purchasing or selling securities of such company, or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities.
In
view
of the fact that the Evaluation Material consists of confidential and non-public
information, you agree that for a period of one year from the date of this
letter agreement, neither you nor any of your affiliates, alone or with others,
will in any manner (1) acquire, agree to acquire, or make any proposal (or
request permission to make any proposal) to acquire any securities (or direct
or
indirect rights, warrants or options to acquire any securities) or property
of
the Company (other than property transferred in the ordinary course of the
Company's business), unless such acquisition, agreement or making of a proposal
shall have been expressly first approved (or in the case of a proposal,
expressly first invited) by the Company's Board of Directors, (2) solicit
proxies from shareholders of the Company or otherwise seek to influence or
control the management or policies of the Company or any of its affiliates
or
(3) assist, advise or encourage (including by knowingly providing or arranging
financing for that purpose) any other person in doing any of the foregoing.
You
hereby represent that neither you nor your affiliates beneficially own any
shares of the Common Stock of the Company.
Without
the prior written consent of the Company (which such consent shall be revocable
at any time), (i) neither you nor those of your Representatives who are aware
of
the Evaluation Material and/or the possibility of a Transaction will initiate
or
cause to be initiated (other
than through Xxxxx XxXxxxxxx or Xxxxx Xxxx) any communications with any officer,
director or employee of the Company or its subsidiaries or affiliates concerning
the Evaluation Material or any possible Transaction and (ii) none of your
directors, officers, employees or other Representatives will for the two-year
period from the date of this letter agreement, solicit or cause to be solicited
the employment of or hire any officer, director or employee of the Company
or
its subsidiaries or affiliates.
2
You
will
promptly upon the written request of the Company deliver to the Company all
documents or other matter furnished to you or your Representatives constituting
Evaluation Material (whether prepared or furnished by the Company, its advisors
or otherwise), together with all copies thereof in the possession of you
or your
Representatives. Except to the extent you are advised in writing by counsel
that
destruction of such material is prohibited by applicable laws, in the event
of
such request, all other documents or other matter constituting Evaluation
Material in the possession of you or your Representatives will be destroyed,
with any such destruction confirmed by you in writing to the Company by an
authorized officer supervising such destruction. To the extent that you are
advised in writing by counsel that destruction of such material is prohibited
by
applicable laws or if your internal policy otherwise requires that you retain
a
copy of such material, you may retain one copy thereof in confidential
restricted access files for use only in the event a dispute arises between
the
Company and you and only if reasonably related to such dispute.
Although
you understand that the Company has endeavored to include in the Evaluation
Material information known to it which it believes to be relevant for the
purpose of your investigation, you further understand that neither the Company
nor its agents or its representatives have made or makes any representation
or
warranty as to the accuracy or completeness of the Evaluation Material. You
agree that neither the Company nor its agents or its representatives shall
have
any liability to you or any of your Representatives resulting from the use
of
the Evaluation Material by you or such Representatives. Only those
representations and warranties that may be made to you or your affiliates
in a
definitive written agreement for a Transaction, when, as and if executed
and
subject to such limitations and restrictions as may be specified therein,
shall
have any legal effect, and you agree that if you determine to engage in an
Transaction such determination will be based solely on the terms of such
written
agreement and on your own investigation, analysis and assessment of the business
to be acquired. Moreover, unless and until such a definitive written agreement
is entered into and delivered, none of the Company, its affiliates or you
will
be under any legal obligation of any kind whatsoever with respect to such
a
Transaction by virtue of this or any written or oral expression with respect
to
such a Transaction except for the matters specifically agreed to in this
Agreement. The agreements set forth in this Agreement may be modified or
waived
only by a separate writing signed by the Company and you, expressly so modifying
or waiving such agreements.
You
acknowledge that money damages would be both incalculable and an insufficient
remedy for any breach of this Agreement by you or your Representatives and
that
any such breach would cause the Company irreparable harm. Accordingly, you
also
agree that in the event of any breach or threatened breach of this Agreement,
the Company, in addition to any other remedies at law or in equity it may
have,
shall be entitled, without the requirement of posting a bond or other security,
to equitable relief, including injunctive relief and specific
performance.
3
It
is
understood and agreed that no failure or delay by the Company in exercising
any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege hereunder.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this letter
agreement, which shall remain in full force and effect.
You
agree
and consent to personal jurisdiction and service and venue in any federal
or
state court within the State of New York having subject matter jurisdiction,
for
the purposes of any action, suit or proceeding arising out of or relating
to
this Agreement. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
If
you
are in agreement with the foregoing, please sign and return one copy of this
letter, which thereupon will constitute our Agreement with respect to the
subject matter hereof.
| Very truly yours, | |||
| First Albany Companies Inc. | |||
|
|
By:
|
/s/ | |
| Name: Xxxxx X. XxXxxxxxx | |||
| Title: Chief Executive Officer | |||
Confirmed
and agreed to as of the date first above written:
MatlinPatterson
Global Advisers LLC
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx
X. Xxxxx
Title:
General
Counsel
4
