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
SECTION 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 8(E).
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(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.
(G)
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE
PLAN, TOGETHER WITH THE OFFER LETTER, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN
THE PARTIES, AND SUPERSEDE 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.
5
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE
DAY AND YEAR FIRST ABOVE WRITTEN.
THE FIRST MARBLEHEAD CORPORATION
By:
/s/ Donald R. Peck
Name:
Donald R. Peck
Title:
Chief Financial Officer
/s/ Peter B. Tarr
Peter B. Tarr
Address:
3 Brooks Circle
Beverly, MA 01915