Exhibit 10.22
THE FIRST MARBLEHEAD CORPORATION
Non-Statutory Stock Option
Agreement
1.
Grant of
Option .
This agreement evidences the grant
by The First Marblehead Corporation, a Delaware corporation (the
“Company”), on August 18, 2008 (the “Grant
Date”) to Daniel Maxwell Meyers, an employee of the Company
(the “Participant”), of an option to purchase, in whole
or in part, on the terms provided herein, a total of 2,000,000
shares (the “Shares”) of common stock, $.01 par value
per share, of the Company (“Common Stock”) at $12.00
per Share (the “Exercise Price”). Unless earlier
terminated, this option shall expire at 5:00 p.m., Eastern
Time, on August 17, 2018 (the “Final Exercise
Date”). For purposes of this Agreement, the
“Vesting Commencement Date” shall be August 18,
2008.
It is intended that the option
evidenced by this agreement shall not be an incentive stock option
as defined in Section 422 of the Internal Revenue Code of
1986, as amended, and any regulations promulgated thereunder (the
“Code”). Except as otherwise indicated by the
context, the term “Participant”, as used in this
option, shall be deemed to include any person who acquires the
right to exercise this option validly under its terms.
This option is not granted under the
Company’s 2003 Stock Incentive Plan, as amended, or any other
stockholder approved stock incentive plan of the
Company.
2.
Vesting
Schedule .
This option will
vest and become fully exercisable upon the occurrence of any of the
following:
(a)
November 16,
2008;
(b)
in the event that
the closing sale price of the Common Stock on the New York Stock
Exchange (or such other national securities exchange on which the
Common Stock is then traded) is at least 150% of the Exercise Price
for a period of five consecutive trading days (assuming the trading
on such day is not less than 90% of the average daily trading
volume for the three months prior to such five-day
period);
(c)
in the event the
Participant dies or becomes Disabled. For purposes of this
Agreement, “Disabled” shall mean the Participant is
unable to perform the essential functions of the
Participant’s then existing position or positions with the
Company with or without reasonable accommodation for a period of
180 days (which need not be consecutive) in any 12-month
period. If any question shall arise as to whether during any
period the Participant is Disabled so as to be unable to perform
the essential functions of the Participant’s then existing
position or positions with or without reasonable accommodation, the
Participant may submit to the Company a certification in reasonable
detail by a physician mutually acceptable to the Participant or the
Participant’s guardian, on the one hand, and the Company, on
the other, as to whether the Participant is so Disabled or how long
such disability is expected to continue, and such certification
shall for the purposes of this agreement be conclusive of the
issue; or
(d)
In the event the
Participant’s employment is terminated by the Company without
“Cause” (as defined below) or the Participant
terminates his employment for “Good Reason” (as defined
below) and the Participant enters into a binding general release of
claims in favor of the Company, other than claims with respect to
Termination Payments (as defined below).
“ Cause ” shall mean: (i) the
willful failure by the Participant to perform his duties under the
Employment Agreement which has continued for more than 30 days
following written notice of such non-performance from the Board and
which failure to perform has had a materially adverse effect on the
financial condition of the Company, (ii) any act of dishonesty,
intentional fraud or willful misconduct on the part of the
Participant in the performance of his duties hereunder, or
(iii) the Participant’s conviction of a felony involving
moral turpitude. For purposes of clause (i) hereof, no
act, or failure to act, on the Participant’s part shall be
deemed “willful” unless done, or omitted to be done, by
the Participant without reasonable belief that the
Participant’s act or failure to act, was in the best interest
of the Company. A determination of Cause shall only be made
at a meeting of the Board called and held for such purpose if the
Board (acting by majority vote of those voting) determines in good
faith that the Executive is guilty of conduct that constitutes
Cause as defined herein.
“ Good Reason ” shall mean that the
Participant has complied with the “Good Reason Process”
(hereinafter defined) following the occurrence of any of the
following events: (i) a material diminution in the
Participant’s responsibilities, authority or duties;
(ii) a material diminution in the Participant’s Base
Salary without the Participant’s prior written consent;
(iii) a material change in the geographic location at which
the Participant provides services to the Company without the
Participant’s prior written consent; or (iv) the
material breach of this Agreement by the Company. “
Good Reason Process ” shall
mean that (i) the Participant reasonably determines in good
faith that a “Good Reason” condition has occurred;
(ii) the Participant notifies the Company in writing of the
occurrence of the Good Reason condition within 60 days of the
occurrence of such condition; (iii) the Participant cooperates
in good faith with the Company’s efforts, for a period of 30
days following such notice (the “ Cure Period ”), to remedy the condition;
(iv) notwithstanding such efforts, the Good Reason condition
continues to exist; and (v) the Participant terminates his
employment within 60 days after the end of the Cure Period.
If the Company cures the Good Reason condition during the Cure
Period, Good Reason shall be deemed not to have
occurred.
“ Termination Payments ” shall mean any
payments or benefits to which the Participant is otherwise entitled
under the terms of any employment agreement, indemnification
agreement, equity or bonus agreement with, or benefit plan of, the
Company pursuant to the terms thereof.
The right of exercise shall be
cumulative so that to the extent the option is not exercised in any
period to the maximum extent permissible it shall continue to be
exercisable, in whole or
2
in part, with respect to all Shares for which it
is vested until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof.
3.
Exercise of
Option .
(a)
Form of
Exercise . Each election to
exercise this option shall be in writing, signed by the
Participant, and received by the Company at its principal office,
accompanied by this agreement, and payment in full in the manner
provided in paragraph 3(b) below. The Participant may
purchase less than the number of shares covered hereby, provided
that no partial exercise of this option may be for any fractional
share or for fewer than ten whole shares.
(b)
Payment Upon
Exercise . Common Stock
purchased upon the exercise of this option shall be paid for as
follows:
(i)
in cash or by
check, payable to the order of the Company;
(ii)
to the extent
permitted by applicable law, by (x) delivery of an irrevocable
and unconditional undertaking by a creditworthy broker to deliver
promptly to the Company sufficient funds to pay the Exercise Price
and any required tax withholding or (y) delivery by the
Participant to the Company of a copy of irrevocable and
unconditional instructions to a creditworthy broker to deliver
promptly to the Company cash or a check sufficient to pay the
Exercise Price and any required tax withholding;
(iii)
to the extent
approved by the Board, in its sole discretion, by delivery (either
by actual delivery or attestation) of shares of Common Stock owned
by the Participant valued at their fair market value as determined
by (or in a manner approved by) the Board (“Fair Market
Value”), provided (x) such method of payment is then
permitted under applicable law, (y) such Common Stock, if
acquired directly from the Company, was owned by the Participant
for such minimum period of time, if any, as may be established by
the Board in its discretion and (z) such Common Stock is not
subject to any repurchase, forfeiture, unfulfilled vesting or other
similar requirements;
(iv)
to the extent
permitted by applicable law and approved by the Board
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