Exhibit 10.1
Execution Copy
THE FIRST MARBLEHEAD CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of November 3, 2004 (the
"Agreement") is entered into by and among The First Marblehead Corporation, a
Delaware corporation (the "Company"), and the individuals and entities listed on
Exhibit A attached hereto (the "Holders").
RECITALS
A.
THE COMPANY, THE HOLDERS AND CERTAIN OTHER SHAREHOLDERS OF THE
COMPANY ARE PARTIES TO THE SHAREHOLDERS AGREEMENT DATED AS OF DECEMBER 21, 1995
(THE "SHAREHOLDERS AGREEMENT") SETTING FORTH VARIOUS AGREEMENTS WITH RESPECT TO
THE OWNERSHIP AND TRANSFER OF SHARES OF COMMON STOCK (AS DEFINED BELOW) AND
OTHER RELATED MATERS.
B.
THE COMPANY COMPLETED AN INITIAL PUBLIC OFFERING OF SHARES OF
COMMON STOCK ON NOVEMBER 5, 2003, MAKING CERTAIN OF THE AGREEMENTS IN THE
SHAREHOLDERS AGREEMENT UNNECESSARY, BURDENSOME OR INAPPROPRIATE FOR STOCKHOLDERS
OF A PUBLIC COMPANY.
C.
EXCEPT FOR AFFILIATES OF THE COMPANY, INCLUDING THE HOLDERS, THE
PARTIES TO THE SHAREHOLDERS AGREEMENT ARE ELIGIBLE TO SELL THEIR SHARES OF
COMMON STOCK IN RELIANCE ON RULE 144(K) OR RULE 701 UNDER THE SECURITIES ACT (AS
DEFINED BELOW).
D.
UPON TERMINATION OF THE SHAREHOLDERS AGREEMENT, THE COMPANY HAS
AGREED TO PROVIDE THE HOLDERS WITH CERTAIN RIGHTS WITH RESPECT TO THE
REGISTRATION OF THEIR SHARES OF COMMON STOCK UNDER THE SECURITIES ACT.
E.
THE MAJORITY SHAREHOLDERS (AS DEFINED IN THE SHAREHOLDERS
AGREEMENT) AND EACH SIGNIFICANT HOLDER (AS DEFINED IN THE SHAREHOLDERS
AGREEMENT) HAVE AGREED AND VOTED TO TERMINATE THE SHAREHOLDERS AGREEMENT.
F.
THE COMPANY AND THE HOLDERS DEEM IT IN THEIR RESPECTIVE BEST
INTERESTS TO ENTER INTO THIS AGREEMENT.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
in this Agreement, the parties hereto agree as follows:
1.
Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliated Party" means, with respect to any Holder, any person or entity
which, directly or indirectly, controls, is controlled by or is under common
control with such Holder, including, without limitation, any general partner,
officer or director of such Holder and any entity now or hereafter existing
which is controlled by one or more general partners of, or shares the same
management company as, such Holder.
"Commission" means the Securities and Exchange Commission, or any other federal
agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value per share, of the Company.
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"Company" has the meaning ascribed to it in the introductory paragraph hereto.
"Company Sale" means: (a) a merger or consolidation in which (i) the Company is
a constituent party or (ii) a Company Subsidiary is a constituent party and the
Company issues shares of its capital stock pursuant to such merger or
consolidation, except in the case of either clause (i) or (ii) any such merger
or consolidation involving the Company or a Company Subsidiary in which the
shares of capital stock of the Company outstanding immediately prior to such
merger or consolidation continue to represent, or are converted into or
exchanged for