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Exhibit
10.1
[First Marblehead Letterhead]
February 12, 2008 (as amended 2/28/08)
Andrew Hawley
69 Central Street
Byfield, MA 01922
Dear Andy:
In connection with the termination of
your employment with The First Marblehead Education Resources, Inc.
(the “Company”) on February 29, 2009, you are
eligible to receive the severance benefits described in the
“Description of Severance Benefits” attached to this
letter agreement as Attachment A if you sign and return this letter
agreement to me no earlier than February 29, 2008 but by
March 3, 2008 and it becomes binding between you and the
Company. By signing and returning this letter agreement, you will
be entering into a binding agreement with the Company and will be
agreeing to the terms and conditions set forth in the numbered
paragraphs below, including the release of claims set forth in
paragraph 3. Therefore, you are advised to consult with an attorney
before signing this letter agreement and you may take up to
twenty-one (21) days to do so. If you sign this letter
agreement, you may change your mind and revoke your agreement
during the seven (7) day period after you have signed it. If
you do not so revoke, this letter agreement will become a binding
agreement between you and the Company upon the expiration of the
seven (7) day revocation period.
If you choose not to sign and return
this letter agreement by March 3, 2008 or if you revoke your
acceptance of this letter agreement during the revocation period,
you shall not receive any severance benefits from the Company. You
will, however, receive payment on your termination for your final
wages and any unused vacation time accrued through the Termination
Date (as defined herein). Also, regardless of signing this letter
agreement, if eligible, you may elect to continue receiving group
medical insurance pursuant to the federal “COBRA” law,
29 U.S.C. § 1161 et seq . All premium costs for
“COBRA” shall be paid by you on a monthly basis for as
long as, and to the extent that, you remain eligible for COBRA
continuation. You should consult the COBRA materials to be provided
by the Company for details regarding these benefits. All other
benefits, including life insurance and long-term disability, will
cease upon your Termination Date.
The following numbered paragraphs set
forth the terms and conditions which will apply if you timely sign
and return this letter agreement and do not revoke it within the
seven (7) day revocation period:
| 1. |
Termination Date - Your effective date of
termination from the Company is February 29, 2008 (the
“Termination Date”). |
| 2. |
Description of Severance Benefits - The severance
benefits paid to you if you timely sign, return and do not revoke
this letter agreement are described in the “Description of
Severance Benefits” attached as Attachment A (the
“severance benefits”). |
| 3. |
Release - In consideration of the payment of the
severance benefits, which you acknowledge you would not otherwise
be entitled to receive, you hereby fully, forever, irrevocably and
unconditionally release, remise and discharge the Company, its
officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, successors and assigns, agents and
employees (each in their individual and corporate capacities)
(hereinafter, the “Released Parties”) from any and all
claims, charges, complaints, demands, actions, causes of action,
suits, rights, debts, sums of money, costs, accounts, reckonings,
covenants, contracts, agreements, promises, doings, omissions,
damages, executions, obligations, liabilities, and expenses
(including attorneys’ fees and costs), of every kind and
nature which you ever had or now have against the Released Parties,
including, but not limited to, those claims arising out of your
employment with and/or separation from the Company, including, but
not limited to, all claims under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq ., the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et
seq ., the Americans With Disabilities Act of 1990, 42
U.S.C. § 12101 et seq ., the Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq ., the Worker
Adjustment and Retraining Notification Act (“WARN”), 29
U.S.C. § 2101 et seq ., Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C.
§ 1514(A), the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq ., Executive Order 11246, Executive Order
11141, the Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq ., the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C. § 1001 et
seq ., the Massachusetts Fair Employment Practices Act.,
M.G.L. c. 151B, § 1 et seq ., the Massachusetts
Civil Rights Act, M.G.L. c. 12, §§ 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, § 102 and M.G.L.
c. 214, § 1C, the Massachusetts Labor and Industries Act,
M.G.L. c. 149, § 1 et seq ., the Massachusetts
Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts
Maternity Leave Act, M.G.L. c. 149, § 105D, all as amended;
all common law claims including, but not limited to, actions in
tort, defamation and breach of contract; all claims to any
non-vested ownership interest in the Company, contractual or
otherwise, including, but not limited to, claims to stock or stock
options; and any claim or damage arising out of your employment
with or separation from the Company (including a claim for
retaliation) under any common law theory or any federal, state or
local statute or ordinance not expressly referenced above;
provided, however, that nothing in this Agreement prevents you from
filing, cooperating with, or participating in any proceeding before
the EEOC or a state Fair Employment Practices Agency (except that
you acknowledge that you may not be able to recover any monetary
benefits in connection with any such claim, charge or
proceeding). |
| 4. |
Invention, Non-Disclosure, Non-Competition and
Non-Solicitation Obligations - You acknowledge and reaffirm
your obligation to keep confidential and not to disclose any and
all non-public information concerning the Company which you
acquired during the course of your employment with the Company,
including, but not limited to, any non-public information
concerning the Company’s business affairs, business prospects
and financial condition, as is stated more fully in the Invention,
Non-Disclosure, Non-Competition and Non-Solicitation Agreement you
executed on September 9, 2005. In response to your concerns
regarding the non-competition provisions of the agreement, the
Company will not consider it a violation of the non-competition
provisions of the Agreement for you to accept a position by or
consulting for a financial services company that does not
specifically offer student loans provided that you do not violate
any other
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provisions of the
Agreement. Where a financial services company has multiple lines of
business including the provision of student loans, the Company will
not consider it a violation of the Agreement for you to accept a
position with or enter into a consulting relationship relating
solely to a line of business that does not engage in the provision
of student loans provided that you do not violate any other
provisions of the Agreement. While the Company has no interest in
unnecessarily limiting your future opportunities, it believes that
any employment or consulting relationship for a student loans
business (whether public or private)
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