Exhibit 10.9
THE FIRST MARBLEHEAD
CORPORATION
Restricted Stock Unit Agreement
Granted Under 2003 Stock Incentive Plan
1)
Grant of Award
.
This Agreement evidences the grant
by The First Marblehead Corporation, a Delaware corporation (the
“Company”) on
(the “Grant Date”) to
(the “Participant”) of
restricted stock units of the Company (individually, an
“RSU” and collectively, the “RSUs”).
Each RSU represents the right to receive one share of the common
stock, $0.01 par value per share, of the Company (“Common
Stock”) as provided in this Agreement. The shares of
Common Stock that are issuable upon vesting of the RSUs are
referred to in this Agreement as “Shares.”
2)
Vesting; Forfeiture
.
a)
This award shall vest as
to
.
b)
In the event that the
Participant’s employment with the Company is terminated by
reason of death or disability, this award shall be fully vested and
the date that the Participant’s employment terminates shall
be a vesting date. For this purpose, “disability”
shall mean the inability of the Participant, due to a medical
reason, to carry out his duties as an employee of the Company for a
period of six consecutive months. In addition, if the
Participant’s employment with the Company is terminated by
the Company for a reason other than “Cause” (as defined
below), then the number of RSUs which shall be vested shall be
determined as though the Participant’s employment had
terminated on the day that follows the anniversary of the Grant
Date that next follows the date of actual termination. For
purposes of this Section 2, “Cause” shall mean
unsatisfactory job performance (as determined by the Company),
willful misconduct, fraud, gross negligence, disobedience or
dishonesty.
c)
For purposes of this Agreement,
employment with the Company shall include employment with a parent
or subsidiary of the Company.
d)
The Participant agrees not to engage
in a Competitive Action (as defined below) from the date hereof
through the first anniversary of the date of termination of the
Participant’s employment with the Company. If on or
prior to a Settlement Date (as defined below), the Participant
engages in a Competitive Action or enters into, or has entered
into, an agreement (written, oral or otherwise) to engage in a
Competitive Action, all of the RSUs and all Shares issuable upon
vesting of all RSU’s subject to this Agreement shall be
immediately forfeited, and the Participant shall have no further
rights with respect to such RSUs or Shares. In the event that
the Participant engages in a Competitive Action or enters into, or
has entered into, an agreement (written, oral or otherwise) to
engage in a Competitive Action after the last Settlement Date but
on or prior to the first anniversary of the Participant’s
termination of employment with the Company, the Participant shall
pay to the Company, upon demand by the Company, an amount equal to
(i) the value, as of each Settlement Date, of the number of
Shares delivered to the Participant represented by RSUs on such
Settlement Date and (ii) the value of all dividends, if any,
paid to the Participant in respect of the Shares delivered to the
Participant on such Settlement Date. The Participant may
satisfy the payment obligation to the Company of the portion due
under (i) above by returning the Shares delivered to the
Participant on all Settlement Dates, provided that any amounts due
under (ii) above must be remitted to the Company in addition
to the return
of the Shares. The Participant
acknowledges that the restriction on engaging in a Competitive
Action, in view of the nature of the business in which the Company
is engaged, is reasonable in scope (as to both the temporal and
geographical limits) and necessary in order to protect the
legitimate business interests of the Company, and that any
violation thereof would result in irreparable injuries to the
Company. The Participant acknowledges further that the
amounts required to be paid to the Company pursuant to this
provision are reasonable and are not liquidated damages nor shall
they be characterized as such and that the payment of such amounts
shall not preclude the Company from seeking any further remedies at
law or in equity.
e)
For purposes of this Agreement, the
Participant will be deemed to engage in a “Competitive
Action” if, either directly or indirectly, and whether as an
employee, consultant, independent contractor, partner, joint
venturer or otherwise, the Participant (i) engages in or
directs any business activities, in any geographical area where the
Company or any subsidiary or parent of the Company is engaged in
business or outside of any such geographical area, in either case,
which are competitive with any business activities conducted by the
Company or any subsidiary or parent of the Company in such
geographical area, (ii) on behalf of any person or entity
engaged in business activities competitive with the business
activities of the Company or any subsidiary or parent of the
Company, solicits or induces, or in any manner attempts to solicit
or induce, any person employed by, or as an agent of, the Company
or any subsidiary or parent of the Company to terminate such
person’s employment or agency relationship, as the case may
be, with the Company or any subsidiary or parent of the Company,
(iii) diverts, or attempts to divert, any person, concern or
entity from doing business with the Company or any subsidiary or
parent of the Company or attempts to induce any such person,
concern or entity to cease being a customer of the Company or any
subsidiary or parent of the Company or (iv) makes use of, or
attempts to make use of, the property or proprietary information of
the Company or any subsidiary or parent of the Company, other than
in the course of the performance of services to the Company or any
subsidiary or parent of the Company or at the direction
thereof. The determination as to whether the Participant has
engaged in a Competitive Action (as defined herein) shall be made
by the Compensation Committee of the Board of Directors of the
Company (the “Committee”) in its sole and absolute
discretion. The Committee’s exercise or nonexercise of
such discretion with respect to any particular event or occurrence
by or with respect to the Participant or any other recipient of
stock options, RSUs or other derivative securities of the Company
shall not in any way reduce or eliminate the authority of the
Committee to (i) determine that any event or occurrence by or
with respect to the Participant constitutes engaging in a
Competitive Action or (ii) determine the related Competitive
Action date.
3)
Distribution of
Shares.
a)
The Company will distribute to the
Participant (or to the Participant’s estate in the event that
his or her death occurs before distribution of the corresponding
Shares), as soon as administratively practicable after each vesting
date (each such date of distribution is hereinafter referred to
a
