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
SECTION 6 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).
(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 CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDES ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS, RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
5
(H)
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.
(I)
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.
IN WITNESS WHEREOF, the Company has caused this option to be executed under its
corporate seal by its duly authorized officer.
This option shall take effect as
a sealed instrument.
THE FIRST MARBLEHEAD CORPORATION
Dated:
By:
Name:
Title:
6
PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.
The undersigned hereby acknowledges receipt of a copy of
the Company's 2003 Stock Incentive Plan.
PARTICIPANT:
Name:
Address:
7
Exhibit A
NOTICE OF STOCK OPTION EXERCISE
Date:
The First Marblehead Corporation
The Prudential Tower
800 Boylston Street, 34th Floor
Boston, MA
02199-8157
Attention:
Treasurer
Dear Sir or Madam:
I am the holder of a stock option granted to me under The First Marblehead
Corporation (the "Company") 2003 Stock Incentive Plan on
for the purchase of
shares of Common Stock of the Company
at a purchase price of $
per share.
I hereby exercise my option to purchase
shares of Common
Stock (the "Shares"), for which I