Exhibit 10.11


 


FIRST AMENDMENT TO EMPLOYMENT AGREEMENT


 


This
FIRST AMENDMENT (the “Amendment”) is entered into as of May 17,
2010 (the “Amendment Effective Date”) by and between The First
Marblehead Corporation, a Delaware corporation (the “Corporation”), and
Daniel Maxwell Meyers (the “Executive”) with regard to that certain
Employment Agreement made as of August 18, 2008 by and between the
Corporation and the Executive (the “Agreement”).  Capitalized terms used herein and not
otherwise defined shall have the meaning set forth in the Agreement.


 


WITNESSETH


 


WHEREAS,
the Corporation and the Executive desire to amend certain terms of the
Agreement as set forth herein.


 


NOW,
THERFORE, in consideration of the mutual covenants and agreements contained in
this Amendment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Corporation and the Executive
hereby agree to amend certain provisions of the Agreement as follows:


 


1.             Section 3(a) of
the Agreement is amended by deleting it in its entirety and substituting
therefor the following:


 


“(a)         Base Salary.


 


(i)            Effective as of the Amendment Effective Date, and
except as otherwise set forth in Section 3(a)(ii) or Section 3(a)(iii) hereof,
the Corporation shall pay the Executive an annual base salary at the rate of
Eight Hundred Thousand Dollars ($800,000) for all services rendered by the
Executive under this Agreement.  Such
base salary shall be paid to the Executive in periodic installments in
accordance with the Corporation’s customary payroll practices.


 


(ii)           For the period beginning on the Commencement Date up
to and through May 16, 2010, the Executive’s base salary was $1.00 per
year (the “Original Base Salary”) and the Corporation accrued an amount
at the rate of $1,000,000 per fiscal year, without interest (which amount was
prorated for (1) the Corporation’s 2009 fiscal year to reflect the portion
of such fiscal year that the Executive was employed by the Corporation and (2) the
Corporation’s 2010 fiscal year to reflect the portion of such fiscal year that
the Executive received the Original Base Salary) (the “Accrued Compensation”).  Subject to the next sentence of this Section (3)(a)(ii),
the Accrued Compensation will be paid to the Executive on the earlier of (x) such
date that the Compensation Committee, in its sole discretion, determines that
all or a portion of such Accrued Compensation will be paid (provided that such
payment may only be made if it would not be in violation of Section 409A
(as defined below), or (y) at such time that that the Corporation first
generates for a fiscal year (after taking into account accrual and payment of
the Accrued Compensation) (A) positive cash flow from operations, and (B) profit
from operations (the financial results set forth in subsections (A) and (B) are
collectively referred to herein as the “Targeted Financial Results”),
and will be considered earned by the Executive on the date that it is payable
as provided herein.  Accrued Compensation
paid to the Executive pursuant to Subsection 3(a)(ii)(y) above will be
paid on the fifth business day following 


 

















 


the
date that the Corporation publicly announces its financial results for the
fiscal year reflecting achievement of such Targeted Financial Results, provided
that the Executive continues to be employed by the Corporation on such
date.  Executive will be entitled to
receive a base salary at the rate of $1,000,000 per fiscal year effective as of
the first day of the fiscal year in which the Accrued Compensation is payable
to the Executive pursuant to Section 3(a)(ii)(y) above, it being
understood that such amount will be paid to the Executive in periodic
installments in accordance with the Corporation’s customary payroll practices.


 


(iii)          The base salary in effect at any given time is
referred to herein as the “Base Salary.” 
Any additional changes to the Base Salary shall be reasonably acceptable
to the Executive and the Compensation Committee.”


 


2.             Section 6(b)(ii) of
the Agreement is amended by deleting the parenthetical phrase “(as defined in Section 6(d))”
in its entirety and substituting therefor the following: “(determined as set
forth in Section 6(c)).”


 


3.             Any reference
in the Agreement to “your,” “Employee” or “Employees” shall refer to the
Executive, except that in the last sentence of Section 8, the reference to
“such Employee” shall be amended to “such employee.”


 


4.             Any reference
in the Agreement to the “Letter Agreement” or “this letter” shall refer to the
Agreement.


 


5.             Except as
specifically amended by this Amendment, the Agreement shall remain in full
force and effect in accordance with its terms.


 


6.             This Amendment
may be executed in any number of counterparts, each of which when so executed
and delivered shall be taken to be an original; but such counterparts shall
together constitute one and the same document.


 


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IN
WITNESS WHEREOF, the parties have executed and delivered this First Amendment
to the Employment Agreement as of the date first above written.


 


 


	
   

  	
  THE
  FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William R. Berkley

  
	
   

  	
   

  	
  William
  R. Berkley

  
	
   

  	
   

  	
  Lead
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Daniel Maxwell Meyers

  
	
   

  	
  Daniel
  Maxwell Meyers