Exhibit
10.1


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                ,
200      (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 one-third of the original number of RSUs on the third
anniversary of the Grant Date and as to an additional one-third of the original
number of RSUs on each succeeding anniversary of the Grant Date until the fifth
anniversary of the Grant Date.


(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.  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 in the following sentence), then the number of RSUs which shall be
vested shall be determined as though the Participant’s employment had
terminated on 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 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 RSUs
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 after a vesting date but before
distribution of the corresponding Shares), as soon as administratively
practicable after each vesting date (each such


 


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date of distribution is hereinafter referred to as a “Settlement
Date”), the Shares of Common Stock represented by RSUs that vested on such
vesting date.


(b)           The
Company shall not be obligated to issue to the Participant the Shares upon the
vesting of any RSU (or otherwise) unless the issuance and delivery of such
Shares shall comply with all relevant provisions of law and other legal
requirements including, without limitation, any applicable federal or state
securities laws and the requirements of any stock exchange upon which shares of
Common Stock may then be listed.


4.             Restrictions on Transfer.


The Participant shall not sell, assign, transfer,
pledge, hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively “transfer”) any RSUs, or any interest therein, except by will or
the laws of descent and distribution.


5.             Dividend and Other Shareholder Rights.


Except as set forth in the Plan, neither the
Participant nor any person claiming under or through the Participant shall be,
or have any rights or privileges of, a stockholder of the Company in respect of
the Shares issuable pursuant to the RSUs granted hereunder until the Shares
have been delivered to the Participant.


6.             Provisions of the Plan; Reorganization Event.


(a)           This
Agreement is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this Agreement.


(b)           Upon
the occurrence of a Reorganization Event (as defined in the Plan), an RSU shall
become the right to receive the cash, securities or other property that a Share
was converted into or exchanged for pursuant to such Reorganization Event.  If, in connection with a Reorganization
Event, a portion of the cash, securities and/or other property received upon
the conversion or exchange of the Shares is to be placed into escrow to secure
indemnification or similar obligations, the mix between the vested and unvested
portion of such cash, securities and/or other property that is placed into
escrow shall be the same as the mix between the vested and unvested portion of
such cash, securities and/or other property that is not subject to escrow.  Notwithstanding the foregoing provisions,
this award shall be fully vested if, on or prior to the second anniversary of
the date of the consummation of the Reorganization Event, the Participant’s
employment with the Company or the Company’s successor is terminated for Good
Reason (as defined below) by the Participant or is terminated without Cause (as
defined below) by the Company or the Company’s successor.


(c)           For
purposes of this Section 6(b), (i) “Good Reason” shall mean any significant
diminution in the Participant’s title, authority, or responsibilities from and
after such Reorganization Event or any reduction in the annual cash
compensation payable to the Participant from and after such Reorganization
Event or the relocation of the place of business at which the Participant is
principally located to a location that is greater than 50 miles from its
location immediately prior to such Reorganization Event and (ii) “Cause” shall
mean any (i) willful failure by the Participant, which failure is not cured
within 30 days of written notice to


 


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the Participant from the Company, to perform his or
her material responsibilities to the Company or (ii)  willful misconduct by the Participant which
affects the business reputation of the Company.


7.             Withholding Taxes; Section 83(b) Election.


(a)           No
Shares will be delivered pursuant to the vesting of an RSU unless and until the
Participant pays to the Company, or makes provision satisfactory to the Company
for payment of, any federal, state or local withholding taxes required by law
to be withheld in respect of this option.


(b)           The
Participant acknowledges that no election under Section 83(b) of the Internal
Revenue Code of 1986 may be filed with respect to this award.


8.             Miscellaneous.


(a)           No
Rights to Employment.  The
Participant acknowledges and agrees that the vesting of the RSUs pursuant to
Section 2 hereof is earned only by continuing service as an employee at the
will of the Company (not through the act of being hired or purchasing shares
hereunder).  The Participant further
acknowledges and agrees that the transactions contemplated hereunder and the
vesting schedule set forth herein do not constitute an express or implied
promise of continued engagement as an employee or consultant for the vesting
period, for any period, or at all.


(b)           Severability.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.


(c)           Waiver.  Any provision for the benefit of the Company
contained in this Agreement may be waived, either generally or in any
particular instance, by the Board of Directors of the Company.


(d)           Binding
Effect.  This Agreement shall be
binding upon and inure to the benefit of the Company and the Participant and
their respective heirs, executors, administrators, legal representatives,
successors and assigns, subject to the restrictions on transfer set forth in
Sections 4 of this Agreement.


(e)           Notice.   All notices required or permitted hereunder
shall be in writing and deemed effectively given upon personal delivery or five
days after deposit in the United States Post Office, by registered or certified
mail, postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 9(e).


(f)            Pronouns.  Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.


 


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(g)           Entire
Agreement.  This Agreement and the
Plan constitute the entire agreement between the parties, and supersedes all
prior agreements and understandings, relating to the subject matter of this
Agreement.


(h)           Amendment.  This Agreement may be amended or modified
only by a written instrument executed by both the Company and the Participant.


(i)            Governing
Law.  This Agreement shall be
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without regard to any applicable conflicts of laws.


(j)            Participant’s
Acknowledgments.  The Participant
acknowledges that he or she: (i) has read this Agreement; (ii) has been
represented in the preparation, negotiation, and execution of this Agreement by
legal counsel of the Participant’s own choice or has voluntarily declined to
seek such counsel; (iii) understands the terms and consequences of this
Agreement; (iv) is fully aware of the legal and binding effect of this
Agreement; and (v) understands that the law firm of Wilmer Cutler Pickering
Hale and Dorr LLP, is acting as counsel to the Company in connection with the transactions
contemplated by the Agreement, and is not acting as counsel for the
Participant.


(k)           Unfunded
Rights.  The right of the Participant
to receive Common Stock pursuant to this Agreement is an unfunded and unsecured
obligation of the Company.  The Participant
shall have no rights under this Agreement other than those of an unsecured
general creditor of the Company.


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.


THE
FIRST MARBLEHEAD CORPORATION


	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  [Name of Participant]

  
	
  Address:

  



 


 


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