Non-Compete and Non-Solicit Agreement
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EXHIBIT
10.35
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FOR
GOOD AND
VALUABLE CONSIDERATION, including the award of Restricted Stock Units, as more
fully described in the accompanying letter (10% of which will be fully vested
upon grant), hereby acknowledged, First Albany Companies, Inc. and its
subsidiaries (“First Albany”) and its employee who is a signatory hereto (the
“Key Employee Partner”) (First Albany and the Key Employee Partner being
referred to, collectively, as the “Parties”) agree as follows:
1.
Non-Compete Covenant. Prior to December 31, 2008, the Key Employee
Partner shall not participate in the ownership, management, operation or control
of a Competitor*
or be
employed by or perform services for a Competitor in a position substantially
similar to the Key Employee’s position at the Company; provided,
however, that the Key Employee Partner may own, solely as a passive
investment, securities of any entity traded on any national securities exchange
if the Key Employee Partner is not a controlling person of (nor owns
individually or as a member of a group, 5% or more of) such entity.
2.
Non-Solicit Covenant. In the event that the employment of the Key
Employee Partner with the Company terminates for any reason, then until the
later of (i) twelve months after such termination or (ii) December 31, 2008,
the
Key Employee Partner shall not, directly or indirectly, solicit for employment
or hire anyone who was an employee of the Company within the period of 180
days
prior to any termination.
3.
Inapplicability of Non-Compete Covenant in Certain Circumstances. The
foregoing Non-Compete Covenant shall not apply to the Key Employee Partner
following any termination of his/her employment by the Company without
cause.
4.
Forfeiture of RSUs Upon Breach. Upon any breach of the Non-Compete
Covenant or the Non-Solicit Covenant by the Key Employee Partner, the Key
Employee Partner shall forfeit any outstanding Restricted Stock Units
(“RSUs”).
5.
Remedies. With respect to the Non-Compete Covenant and the Non-Solicit
Covenant, the Parties acknowledge and agree that:
(i)
if, in any
judicial proceeding, a court shall deem part of the Non-Compete Covenant or
the
Non-Solicit Covenant invalid, illegal or unenforceable because
its scope is considered
excessive, it shall be
modified so that the scope of the Non-Compete Covenant or the Non-Solicit
Covenant, as applicable, is reduced only to
the minimum
extent necessary
to render the modified covenant valid, legal and enforceable.
(ii)
it is impossible
to measure in money the damages that will accrue to the Company in the event
that the Key Employee Partner breaches the Non-Compete Covenant or the
Non-Solicit Covenant. In the event that the Key Employee Partner breaches the
Non-Compete Covenant or the Non-Solicit Covenant, the Company shall be entitled
to an
injunction, a restraining order or such other equitable relief, including,
but
not limited to, specific performance (without the requirement to post bond)
restraining the Key
Employee Partner from violating such covenant. If the Company shall institute
any action or proceeding to enforce the Non-Compete Covenant or the Non-Solicit
Covenant,
the Key Employee Partner hereby waives the claim or defense that the Company
has
an adequate remedy at law and agrees not to assert in any such action or
proceeding
the claim or defense that the Company has an adequate remedy at law. In
addition, the Company shall retain all remedies available to it at law. The
Non-Compete
and the Non-Solicit Covenants shall be in addition to any restrictions imposed
on the Key Employee Partner by statute, at common law or under any other agreement
to which the Ke
Employee Partner is a party.
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Agreed
and Accepted:
This
12th day of May, 2007
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C.
Xxxxx Xxxx
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FIRST
ALBANY COMPANIES, INC.
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Name
of Employee (please print)
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/s/
C. Xxxxx Xxxx
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By:
____________________________
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Signature
of Employee (please sign)
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