**Exhibit 10.2**

 

**INVENTION, NON-DISCLOSURE,NON-COMPETITION AND NON-SOLICITATION AGREEMENT**

 

This Agreement is made between The First MarbleheadCorporation, a Delaware corporation (hereinafter referred to collectively withits subsidiaries as the “Company”), and “                                                          ”(the “Employee”).

 

In consideration of the employment or the continuedemployment of the Employee by the Company, the Company and the Employee agreeas follows:

 

1. ProprietaryInformation

a) TheEmployee agrees that all information, whether or not in writing, of aconfidential nature concerning the Company’s business (collectively, “ProprietaryInformation”) is and shall be the exclusive property of the Company. TheEmployee will not disclose any Proprietary Information to any person or entityother than employees of the Company or use the same for any purposes (otherthan in the performance of his/her duties as an employee of the Company)without written approval by an officer of the Company, either during or afterhis/her employment with the Company, unless and until such ProprietaryInformation has become public knowledge without fault by the Employee.

 

b) The Employee agrees that all materials containingProprietary Information, whether created by the Employee or others, which shallcome into his/her custody or possession, shall be and are the exclusiveproperty of the Company to be used by the Employee only in the performance ofhis/her duties for the Company. All such materials or copies thereof and alltangible property of the Company in the custody or possession of the Employeeshall be delivered to the Company, upon the earlier of (i) a request bythe Company or (ii) termination of his/her employment. After suchdelivery, the Employee shall not retain any such materials or copies thereof orany such tangible property.

 

c) The Employee agrees that his/her obligation not todisclose or to use information and materials of the types set forth inparagraphs (a) and (b) above, and his/her obligation to returnmaterials and tangible property, set forth in paragraph (b) above,also extends to such types of information, materials and tangible property ofcustomers of the Company or other third parties who may have disclosed orentrusted the same to the Company or to the Employee.

 

2. Developments

a) The Employee will makefull and prompt disclosure to the Company of all inventions, improvements,discoveries, methods, developments, software, and works of author ship, whetherpatentable or not, which are created, made, conceived or reduced to practice byhim/her or under his/her direction or jointly with others during his/heremployment by the Company, whether or not during normal working hours or on thepremises of the Company (all of which are collectively referred to in thisAgreement as “Developments”).

 

b) The Employee agrees toassign and does hereby assign to the Company (or any person or entitydesignated by the Company) all his/her right, title and interest in and to allDevelopments and all related patents, patent applications, copyrights andcopyright applications. However, this paragraph 2(b) shall not applyto Developments which do not relate to the business or research and developmentconducted or planned to be conducted by the Company at the time suchDevelopment is created, made, conceived or reduced to practice and which aremade and conceived by the Employee not during normal working hours, not on theCompany’s premises and not using the Company’s tools,

 

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devices, equipment orProprietary Information. The Employee understands that, to the extent thisAgreement shall be construed in accordance with the laws of any state whichprecludes a requirement in an employee agreement to assign certain classes ofinventions made by an employee, this paragraph 2(b) shall beinterpreted not to apply to any invention which a court rules and/or theCompany agrees falls within such classes.

 

c) The Employee agrees tocooperate fully with the Company, both during and after his/her employment withthe Company, with respect to the procurement, maintenance and enforcement ofcopyrights, patents and other intellectual property rights (both in the UnitedStates and foreign countries) relating to Developments. The Employee shall signall papers which the Company may deem necessary or desirable in order toprotect its rights and interests in any Development. The Employee furtheragrees that if the Company is unable, after reasonable effort, to secure thesignature of the Employee on any such papers, any executive officer of theCompany shall be entitled to execute any such papers as the agent and theattorney-in-fact of the Employee, and the Employee hereby irrevocablydesignates and appoints each executive officer of the Company as his/her agentand attorney-in-fact to execute any such papers on his/her behalf, and to takeany and all actions as the Company may deem necessary or desirable in order toprotect its rights and interests in any Development, under the conditionsdescribed in this sentence.

 

3. Other Agreements

The Employee herebyrepresents that, except as the Employee has disclosed in writing to theCompany, the Employee is not bound by the terms of any agreement with anyprevious employer or other party to refrain from using or disclosing any tradesecret or confidential or proprietary information in the course of his/heremployment with the Company, to refrain from competing, directly or indirectly,with the business of such previous employer or any other party or to refrainfrom soliciting employees, customers or suppliers of such previous employer orother party.  The Employee furtherrepresents that his/her performance of all the terms of this Agreement and theperformance of his/her duties as an employee of the Company do not and will notbreach any agreement with any prior employer or other party to which theEmployee is a party (including without limitation any nondisclosure ornon-competition agreement), and that the Employee will not disclose to theCompany or induce the Company to use any confidential or proprietaryinformation or material belonging to any previous employer or others.

 

4. Non-Competition and Non-Solicitation

While the Employee is employed by the Company and for aperiod of one year after the termination or cessation of such employment forany reason, the Employee will not directly or indirectly:

 

a) Engage in any business or enterprise (whether as owner,partner, officer, director, employee, consultant, investor, lender or otherwise,except as the holder of not more than 1% of the outstanding stock of apublicly-held company) that is competitive with the Company’s business,including but not limited to any business or enterprise that develops,manufactures, markets, licenses, sells or provides any product or service thatcompetes with any product or service developed, manufactured, marketed,licensed, sold or provided, or planned to be developed, manufactured, marketed,licensed, sold or provided, by the Company while the Employee was employed bythe Company; or

 

b) Either alone or in association with others (i) solicit,or permit any organization directly or indirectly controlled by the Employee tosolicit, any employee of the Company to leave the employ of the Company, or (ii) solicitfor employment, hire or engage as an independent contractor, or permit anyorganization directly or indirectly controlled by the Employee to solicit foremployment, or hire or engage as an independent contractor, any person who wasemployed by the Company at any time during the term of the Employee’semployment with the Company; provided, that this clause (ii) shall notapply to the solicitation, hiring or engagement of any individual whoseemployment with the Company has been terminated for a period of six months orlonger.

 

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5. No Employment Contract

The Employee understands that this Agreement does notconstitute a contract of employment and does not imply that his/her employmentwill continue for any period of time.

 

6. Miscellaneous

a) The invalidity or unenforceability of any provision ofthis Agreement shall not affect the validity or enforceability of any otherprovision of this Agreement.

 

b) If the Employee violates the provisions of Section 4,the Employee shall continue to be bound by the restrictions set forth in Section 4until a period of one year has expired without any violation of suchprovisions.

 

c) If any restriction set forth in Section 4 is found byany court of competent jurisdiction to be unenforceable because it extends fortoo long a period of time or over too great a range of activities or in toobroad a geographic area, it shall be interpreted to extend only over themaximum period of time, range of activities or geographic area as to which itmay be enforceable.

 

d) This Agreement supersedes all prior agreements, written ororal, between the Employee and the Company relating to the subject matter ofthis Agreement. This Agreement may not be modified, changed or discharged inwhole or in part, except by an agreement in writing signed by the Employee andthe Company. The Employee agrees that any change or changes in his/her duties,salary or compensation after the signing of this Agreement shall not affect thevalidity or scope of this Agreement.

 

e) This Agreement will be binding upon the Employee’s heirs,executors and administrators and will inure to the benefit of the Company andits successors and assigns.

 

f) No delay or omission by the Company in exercising anyright under this Agreement will operate as a waiver of that or any other right.A waiver or consent given by the Company on any one occasion is effective onlyin that instance and will not be construed as a bar to or waiver of any righton any other occasion.

 

g) The restrictions contained in this Agreement are necessaryfor the protection of the business and goodwill of the Company and areconsidered by the Employee to be reasonable for such purpose. The Employeeagrees that any breach of this Agreement is likely to cause the Companysubstantial and irrevocable damage which is difficult to measure. Therefore, inthe event of any such breach or threatened breach, the Employee agrees that theCompany, in addition to such other remedies which may be available, shall havethe right to specific performance of the provisions of this Agreement and shallhave the right to obtain an injunction from a court restraining such a breachor threatened breach, and the Employee hereby waives the adequacy of a remedyat law as a defense to such relief.

 

h) This Agreement is governed by and will be construed as asealed instrument under and in accordance with the laws of the Commonwealth ofMassachusetts (without reference to the conflicts of laws provisionsthereof).  Any action, suit, or otherlegal proceeding which is commenced to resolve any matter arising under orrelating to any provision of this Agreement shall be commenced only in a courtof the Commonwealth of Massachusetts (or, if appropriate, a federal courtlocated within Massachusetts), and the Company and the Employee each consentsto the jurisdiction of such a court.

 

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THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THISAGREEMENT AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THISAGREEMENT.

 

 
| THE FIRST MARBLEHEAD CORPORATION |
|----------------------------------|
| Date:                            |
| By:                              |
| Print Name:                      |
| Title:                           |
|                             |
|                             |
| EMPLOYEE                         |
| Date:                            |
| Employee Signature:              |

 

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