EXHIBIT 10.45
OPTION AGREEMENT
THIS OPTION AGREEMENT is made effective the 30th day of September, 2003 by
and among The First Marblehead Corporation, a Delaware corporation, with its
principal offices at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Company"), Xxxxxx Xxxxxxx Xxxxxx, an individual residing at 00 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Stockholder"), and Xxxxx X. Xxxxx, an
individual residing at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
("Xxxxx").
WHEREAS, Stockholder wishes to grant to Xxxxx an option to purchase shares
of Common Stock of the Company as provided herein.
NOW THEREFORE, in consideration of the mutual covenants and promises set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents
and warrants to Xxxxx as follows:
(a) Stockholder is the record and beneficial owner of at least 46,568
shares of Common Stock, $0.01 par value per share of the Company.
(b) Stockholder has full power and authority to execute and deliver
this Agreement (including, without limitation, full power and authority to
transfer the Purchased Shares (defined below)). This Agreement has been executed
and delivered by Stockholder and constitutes the legal, valid and binding
obligation of Stockholder, enforceable against him in accordance with its terms.
Neither the execution and delivery of this Agreement nor the consummation by
Stockholder of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which
Stockholder is a party or bound or to which Option Shares (defined below) are
subject. To the best of Stockholder's knowledge, consummation by Stockholder of
the transactions contemplated by this Agreement will not violate, or require any
consent, approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to Stockholder or the Option
Shares (other than any consents required pursuant to the Shareholders Agreement
(the "Shareholders Agreement") dated as of December 21, 1995, among the Company
and the stockholders named thereto, which consents shall be obtained prior to
Xxxxx' exercise of the Stock Option (defined below) unless the provisions of the
Shareholders Agreement requiring such consents are terminated in which case such
consents will not be obtained).
(c) The Option Shares and the certificate representing such Option
Shares are now and at all times during the term hereof will be held by
Stockholder, or by the Company for the benefit of Stockholder, free and clear of
all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder or
under the Shareholders Agreement.
2. GRANT OF OPTION. Stockholder hereby grants to Xxxxx an option (the
"Stock Option") to purchase on or prior to September 30, 2013 (the "Expiration
Date"), 46,568 shares of Common Stock, $.01 par value per share ("Common
Stock"), of the Company (the "Option Shares"), at an option exercise price of
$16.61 per share (the "Option Exercise Price"), subject to the terms and
conditions set forth in this Option Agreement (the "Agreement").
3. VESTING AND EXERCISABILITY.
(a) The Stock Option is fully vested and immediately exercisable with
respect to all Option Shares, and it shall continue to be exercisable by Xxxxx
or his successors as contemplated herein at any time or times prior to the
Expiration Date.
(b) In the event that Xxxxx' employment with the Company terminates
for any reason or under any circumstances, including Xxxxx' resignation,
retirement or termination by the Company, upon death or disability, or for any
other reason, regardless of the circumstances thereof, this Stock Option shall
thereafter continue to be fully vested and fully exercisable by Xxxxx or his
successors as contemplated herewith at any time or times prior to the Expiration
Date.
4. EXERCISE OF STOCK OPTION.
(a) Prior to the Expiration Date, Xxxxx xxx exercise this Stock
Option by delivering to Stockholder and the Company a Stock Option exercise
notice (an "Exercise Notice") in the form of APPENDIX A attached hereto,
indicating his election to purchase some or all of the Option Shares. Such
notice shall specify the number of Option Shares to be purchased, provided
however, that no partial exercise of this option may be for any fractional share
or for less than fifty whole shares.
(b) Payment of the purchase price may be made in cash, by certified
or bank check, or other instrument acceptable to Stockholder in U.S. funds
payable to the order of Xxxxxx Xxxxxxx Xxxxxx in an amount equal to the purchase
price of such Option Shares.
(c) Certificates for the Option Shares so purchased will be issued
and delivered to Xxxxx. Until Xxxxx shall have complied with the requirements
hereof, including without limitation Section 8 hereof, Stockholder shall be
under no obligation to transfer the Option Shares subject to this Stock Option.
Xxxxx shall not be deemed to be the holder of, or to have any of the rights of a
holder with respect to, any shares of stock subject to this Stock Option unless
and until this Stock Option shall have been exercised pursuant to the terms
hereof, and Xxxxx' name shall have been entered as a stockholder of record of
such Option Shares on the
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books of the Company. Thereupon, Xxxxx shall have full dividend and other
ownership rights with respect to such Purchased Shares, subject to the terms of
this Agreement.
(d) Notwithstanding any other provision hereof, no portion of this
Stock Option shall be exercisable after the Expiration Date.
5. COVENANTS. Stockholder agrees with, and covenants to, Xxxxx that
Stockholder shall not, except as contemplated by the terms of this Agreement and
the Shareholders Agreement, (a) transfer (which term shall include, without
limitation, for the purposes of this Agreement any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of such Option Shares or
any interest therein, (b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such Option Shares
or any interest therein, (c) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to such Option Shares, (d) deposit
such Option Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Option Shares, or (e) take any other action
that would in any way restrict, limit or interfere with the performance of his
obligations hereunder or the transactions contemplated hereby. The obligations
of this Section 5 shall terminate upon the earlier of the exercise in full of
the Option Shares or the Expiration Date.
6. TRANSFERABILITY.
(a) This Agreement is personal to Xxxxx and is not transferable by
Xxxxx in any manner other than by will or by the laws of descent and
distribution. Xxxxx xxx elect to designate a beneficiary by providing written
notice of the name of such beneficiary to the Company, and may revoke or change
such designation at any time by filing written notice of revocation or change
with the Company; such beneficiary may exercise Xxxxx' Stock Option in the event
of Xxxxx' death, to the extent provided herein. If Xxxxx does not designate a
beneficiary, or if the designated beneficiary predeceases Xxxxx, the executor of
Xxxxx' estate may exercise this Stock Option to the extent provided herein in
the event of Xxxxx' death.
(b) Stockholder agrees that this Agreement and the obligations
hereunder shall attach to such Option Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Option Shares
shall pass, whether by operation of law or otherwise, including without
limitation Stockholder's heirs, guardians, administrators or successors.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. The shares of stock covered
by this Stock Option are shares of Common Stock of the Company. If the shares of
Common Stock as a whole are increased, decreased, changed or converted into or
exchanged for a different number or kind of shares or securities of the Company
or any successor entity (or a parent or subsidiary thereof), whether through
merger or consolidation, sale of all or substantially all of the assets of the
Company, reorganization, recapitalization, reclassification, stock dividend,
stock split, combination of shares, exchange of shares, change in corporate
structure or the like, an appropriate and proportionate adjustment shall be made
in the number and kind of shares and in
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the per share exercise price of shares subject to any unexercised portion of
this Stock Option. In the event of any such adjustment in this Stock Option,
Xxxxx thereafter shall have the right, to purchase the number of shares under
this Stock Option at the per share price, as so adjusted, which Xxxxx could
purchase at the total purchase price applicable to this Stock Option immediately
prior to such adjustment, all references herein to Common Stock shall be deemed
to refer to the security that is subject to acquisition upon exercise of this
Stock Option and all references to the Company shall be deemed to refer to the
issuer of such security.
8. WITHHOLDING TAXES. Xxxxx shall, not later than the date of exercise,
pay to the Company or make arrangements satisfactory to the Company for payment
of any federal, state and local taxes required by law to be withheld on account
of such exercise. Xxxxx acknowledges and agrees that the Company or any
subsidiary of the Company ("Subsidiary") has the right to deduct from payments
of any kind otherwise due to Xxxxx, or from the Option Shares to be issued in
respect of an exercise of this Stock Option, any federal, state or local taxes
of any kind required by law to be withheld with respect to the issuance of
Option Shares to Xxxxx. The Company shall not be required to register in the
stock records any exercise of this Stock Option or issue, or register the
issuance of, any Option Shares until complies with the requirements of this to
the reasonable satisfaction of the Company.
9. LOCKUP PROVISION. Xxxxx agrees, if requested by the Company and any
underwriter engaged by the Company, not to sell or otherwise transfer or dispose
of any securities of the Company (including, without limitation pursuant to Rule
144 under the Act) held by him for such period following the effective date of
any registration statement of the Company filed under the Act as the Company or
such underwriter shall specify reasonably and in good faith, not to exceed 180
days in the case of the Company's Initial Public Offering or 90 days in the case
of any other public offering.
10. MISCELLANEOUS PROVISIONS.
(a) EQUITABLE RELIEF. The parties hereto agree and declare that legal
remedies may be inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
(b) CHANGE AND MODIFICATIONS. This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by Stockholder, the Company and Xxxxx.
(c) NO EMPLOYMENT RIGHTS. Unless expressly provided in a written
agreement between Xxxxx and the Company or any Subsidiary, Xxxxx' employment is
at will. Nothing contained in this Agreement shall confer upon Xxxxx any right
to continued employment with the Company or any Subsidiary.
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(d) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts without regard
to conflict of law principles.
(e) HEADINGS. The headings are intended only for convenience in
finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
(f) SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(g) NOTICES. All notices, requests, consents and other communications
shall be in writing and be deemed given when delivered personally, by telex or
facsimile transmission or when received if mailed by first class registered or
certified mail, postage prepaid. Notices to the Company shall be to the
Company's principal corporate offices, and notices to Xxxxx or Stockholder shall
be addressed as set forth in the preamble of this Agreement, or to such other
address or addresses as may have been furnished by such party in writing to the
other.
(h) BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their respective
successors, permitted assigns, and legal representatives. The Company has the
right to assign this Agreement, and such assignee shall become entitled to all
the rights of the Company hereunder to the extent of such assignment.
(i) COUNTERPARTS. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
(j) PRIOR AGREEMENT. The Company, Stockholder and Xxxxx acknowledge
and agree that upon execution of this Agreement by all parties hereto,
Stockholder shall have no further obligations to Xxxxx pursuant to the letter
attached hereto as EXHIBIT A, and Xxxxx shall have no rights thereunder.
(k) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the Company, Xxxxx and Stockholder and supersedes all prior understandings
and agreements, both written and oral, with respect to the subject matter
hereof.
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
THE FIRST MARBLEHEAD CORPORATION.
By: /s/ Xxxxxx X. Xxxx /s/ Xxxxxx Xxxxxxx Xxxxxx
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Xxxxxx X. Xxxx Xxxxxx Xxxxxxx Xxxxxx
Chief Financial Officer
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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APPENDIX A
STOCK OPTION EXERCISE NOTICE
Xxxxxx Xxxxxxx Xxxxxx The First Marblehead Corporation
00 Xxxxxx Xxxxxx Attention: Chief Financial Officer
Xxxxxxxxxx, XX 00000 00 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Pursuant to the terms of that certain Option Agreement by and among The
First Marblehead Corporation, Xxxxxx Xxxxxxx Xxxxxx, and Xxxxx X. Xxxxx, dated
September __, 2003 (the "Agreement"), the undersigned hereby exercises such
option by including herein payment in the amount of $_______ representing the
purchase price for ______________ [Fill in number of Option Shares] Option
Shares. I have chosen the following form(s) of payment:
/ / 1. Cash; or
/ / 2. Certified or bank check payable to Xxxxxx Xxxxxxx Xxxxxx
/ / 3. Other (as contemplated in Section 4(b) of the Agreement)
(please describe)
Sincerely yours,
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Xxxxx X. Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
