Exhibit 10.2


 


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


 


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


 


In consideration of the employment or the continued
employment of the Employee by the Company, the Company and the Employee agree
as follows:


 


1. Proprietary
Information


a) The
Employee agrees that all information, whether or not in writing, of a
confidential nature concerning the Company’s business (collectively, “Proprietary
Information”) is and shall be the exclusive property of the Company. The
Employee will not disclose any Proprietary Information to any person or entity
other than employees of the Company or use the same for any purposes (other
than 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 after
his/her employment with the Company, unless and until such Proprietary
Information has become public knowledge without fault by the Employee.


 


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


 


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


 


2. Developments


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


 


b) The Employee agrees to
assign and does hereby assign to the Company (or any person or entity
designated by the Company) all his/her right, title and interest in and to all
Developments and all related patents, patent applications, copyrights and
copyright applications. However, this paragraph 2(b) shall not apply
to Developments which do not relate to the business or research and development
conducted or planned to be conducted by the Company at the time such
Development is created, made, conceived or reduced to practice and which are
made and conceived by the Employee not during normal working hours, not on the
Company’s premises and not using the Company’s tools,


 


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


 


c) The Employee agrees to
cooperate fully with the Company, both during and after his/her employment with
the Company, with respect to the procurement, maintenance and enforcement of
copyrights, patents and other intellectual property rights (both in the United
States and foreign countries) relating to Developments. The Employee shall sign
all papers which the Company may deem necessary or desirable in order to
protect its rights and interests in any Development. The Employee further
agrees that if the Company is unable, after reasonable effort, to secure the
signature of the Employee on any such papers, any executive officer of the
Company shall be entitled to execute any such papers as the agent and the
attorney-in-fact of the Employee, and the Employee hereby irrevocably
designates and appoints each executive officer of the Company as his/her agent
and attorney-in-fact to execute any such papers on his/her behalf, and to take
any and all actions as the Company may deem necessary or desirable in order to
protect its rights and interests in any Development, under the conditions
described in this sentence.


 


3. Other Agreements


The Employee hereby
represents that, except as the Employee has disclosed in writing to the
Company, the Employee is not bound by the terms of any agreement with any
previous employer or other party to refrain from using or disclosing any trade
secret or confidential or proprietary information in the course of his/her
employment with the Company, to refrain from competing, directly or indirectly,
with the business of such previous employer or any other party or to refrain
from soliciting employees, customers or suppliers of such previous employer or
other party.  The Employee further
represents that his/her performance of all the terms of this Agreement and the
performance of his/her duties as an employee of the Company do not and will not
breach any agreement with any prior employer or other party to which the
Employee is a party (including without limitation any nondisclosure or
non-competition agreement), and that the Employee will not disclose to the
Company or induce the Company to use any confidential or proprietary
information 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 a
period of one year after the termination or cessation of such employment for
any 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 a
publicly-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 that
competes 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 by
the Company; or


 


b) Either alone or in association with others (i) solicit,
or permit any organization directly or indirectly controlled by the Employee to
solicit, any employee of the Company to leave the employ of the Company, or (ii) solicit
for employment, hire or engage as an independent contractor, or permit any
organization directly or indirectly controlled by the Employee to solicit for
employment, or hire or engage as an independent contractor, any person who was
employed by the Company at any time during the term of the Employee’s
employment with the Company; provided, that this clause (ii) shall not
apply to the solicitation, hiring or engagement of any individual whose
employment with the Company has been terminated for a period of six months or
longer.


 


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5. No Employment Contract


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


 


6. Miscellaneous


a) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision 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 4
until a period of one year has expired without any violation of such
provisions.


 


c) If any restriction set forth in Section 4 is found by
any court of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable.


 


d) This Agreement supersedes all prior agreements, written or
oral, between the Employee and the Company relating to the subject matter of
this Agreement. This Agreement may not be modified, changed or discharged in
whole or in part, except by an agreement in writing signed by the Employee and
the 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 the
validity 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 and
its successors and assigns.


 


f) No delay or omission by the Company in exercising any
right 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 only
in that instance and will not be construed as a bar to or waiver of any right
on any other occasion.


 


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


 


h) This Agreement is governed by and will be construed as a
sealed instrument under and in accordance with the laws of the Commonwealth of
Massachusetts (without reference to the conflicts of laws provisions
thereof).  Any action, suit, or other
legal proceeding which is commenced to resolve any matter arising under or
relating to any provision of this Agreement shall be commenced only in a court
of the Commonwealth of Massachusetts (or, if appropriate, a federal court
located within Massachusetts), and the Company and the Employee each consents
to the jurisdiction of such a court.


 


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


 


 


	
  THE FIRST MARBLEHEAD CORPORATION

  
	
  Date:

  
	
  By:

  
	
  Print Name:

  
	
  Title:

  
	
   

  
	
   

  
	
  EMPLOYEE

  
	
  Date:

  
	
  Employee Signature:

  



 


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