Exhibit 10.17
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is effective as of October 1,
1996, and is made by and between HEALTHCARE FINANCIAL PARTNERS, INC., a Delaware
corporation (the "Corporation") (formerly known as HEALTHPARTNERS FINANCIAL
CORPORATION), and XXXXXX X. SILVER ("Employee").
W I T N E S S E T H:
- - - - - - - - - -
A. Employee is a consultant currently providing marketing and systems
analysis services to the Corporation pursuant to a marketing services agreement
between Employee and the Corporation dated November 1, 1995 (the "Marketing
Services Agreement") and possesses an intimate knowledge of the business and
affairs of the Corporation.
B. The Corporation recognizes Employee's contribution to the growth and
success of the Corporation and desires to assure to the Corporation the
continued benefits of Employee's expertise and knowledge by terminating the
Marketing Services Agreement and hiring Employee as a full-time employee of the
Corporation on the terms provided in this Agreement.
C. Employee desires to terminate the Marketing Services Agreement and
commence full-time employment with the Corporation on the terms provided in this
Agreement.
D. The Corporation and Employee recognize that Employee's knowledge of
the business and affairs of the Corporation make it necessary to have certain
restrictions on Employee's right to engage in activities that may be detrimental
to the Corporation.
NOW, THEREFORE, in consideration of the foregoing premises, and of the
mutual covenants and representations contained in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Full-Time Employment of Employee.
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1.1 Duties and Status
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(a) The Corporation hereby engages Employee as a full-time executive
employee for the period specified in paragraph 4 (the "Employment Period"), and
Employee accepts the employment, on the terms and conditions set forth in this
Agreement. During the Employment Period, Employee shall, subject at all times
to the direction and review of the President of the Corporation or his designee
(hereinafter the "President") develop and implement all advertising and
promotion campaigns, develop and coordinate a broker network, coordinate all
sales and marketing efforts, and hire and supervise all sales persons (including
telemarketers) employed or retained by the Corporation, and be entitled to
exercise such authority and perform such duties as are commensurate with the
authority exercised and duties performed by a sales and
marketing director. Upon the termination of that certain adversary proceeding
involving Employee and his former employer, Towers Financial Corporation, the
Corporation shall cause Employee to be elected an officer of the Company in the
position of Vice President of Marketing.
(b) During the Employment Period, Employee shall (i) devote his full
time and efforts to the business of the Corporation and its affiliates and will
not engage in consulting work or any trade or business for his own account or
for or on behalf of any other person, firm or corporation or any other activity
which, in the judgment of the President, competes, conflicts or interferes with
the performance of his duties hereunder in any way, and (ii) accept and perform
any and all other duties assigned to him by the President, provided that the
performance of such duties shall not be inconsistent with the scope of the
duties provided for in subparagraph (a) of this paragraph 1.1.
(c) The primary location from which Employee shall be required to
perform the services and duties provided for in paragraph (a) of this paragraph
1.1 shall be at the Corporation's main office in Chevy Chase, Maryland or such
other location in the greater Washington metropolitan area as the Corporation
may designate.
1.2 Compensation and General Benefits. As compensation for his
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services under this Agreement, Employee shall be compensated as follows:
(a) Beginning on the date of this Agreement, the Corporation shall pay
Employee an annual salary of $125,000. Beginning on January 1, 1998, and on
each January 1 thereafter during the employment period, the Corporation shall
pay Employee an annual salary that is not less than the greater of (i) $135,000
or (ii) any subsequently established higher annual base salary, in either case
increased annually by not less than 50% of the annual increase in the Consumer
Price Index for Urban Wage Earners and Clerical Workers (CPI-W), Washington,
D.C. All Items (1967-100) published by the Bureau of Labor Statistics, U.S.
Department of Labor or any comparable successor index. The salary shall be
payable in periodic equal installments that are no less frequent than the
periodic salary installments paid to employees of the Corporation generally.
(b) Employee shall be eligible to participate in those profit-sharing,
stock option, bonus, incentive and performance award programs as are in effect
and are available to officers of comparable rank. Notwithstanding the
foregoing, however, nothing in this Employment Agreement shall preclude the
Corporation's Board of Directors (the "Board") from (i) providing special
benefits or making awards to other employees for meritorious service by them,
which benefits or awards are in excess of those granted to Employee, and (ii)
discontinuing any plan or program at any time that the Board determines that the
discontinuance is in the best interests of the Corporation. Employee will be
reimbursed for any expenses incurred on behalf of the Corporation.
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(c) Beginning on December 31, 1996, and on the last day of each
calendar quarter thereafter during the term of this Agreement, Employee shall be
paid a bonus of $12,500. At the request of Employee, the bonus shall be paid in
periodic equal installments that are no less frequent than the periodic
installments relating to employees of the Corporation generally. Employee shall
also be entitled to receive an annual bonus at the discretion of the Board based
upon the Corporation's general performance, and the specific performance of the
Corporation's marketing efforts.
(d) Employee shall be entitled to receive and obtain the benefit of
those employee benefits (including, without limitation, pension and
supplemental retirement plans and programs, disability insurance, group and
other life insurance programs, sickness, accident and health insurance programs)
and those perquisites provided by the Corporation to executives with comparable
authority or duties (and, in any event, not less than those provided to
executives with junior authority or duties); provided, however, that nothing in
this Agreement shall preclude the Board from discontinuing any plan or program
at any time that the Board determines that the discontinuance is in the best
interests of the Corporation.
(e) Employee shall be entitled to receive three (3) weeks
vacation during each year.
2. Competition; Confidential Information.
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2.1 Employee's Access to Confidential and Proprietary Information.
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(a) Employee and the Corporation acknowledge and recognize that due to
the nature of Employee's prior association with the Corporation, its
subsidiaries and its affiliates and his duties and responsibilities under this
Agreement, and due to the relationship of Employee to the Corporation and its
affiliates, both in the past as a consultant and in the future under this
Agreement, Employee has had access to and has acquired, will have access to and
will acquire, and has assisted in and may assist in developing, confidential and
proprietary information relating to the business and operations of the HCFP
Companies (as defined in paragraph 2.2(c) below) and their affiliates,
including, without limiting the generality of the foregoing, information with
respect to present and proposed projects, transactions completed and under
negotiation, financing and sales and marketing methods.
(b) Employee acknowledges that confidential and proprietary
information has been and will continue to be of vital importance to the business
of the HCFP Companies and their affiliates and that disclosure of that
information to or use of that information by others could cause substantial loss
to the Corporation.
(c) Employee and the Corporation acknowledge and recognize that an
important part of Employee's duties will be to develop good will for the HCFP
Companies and their affiliates through his personal contact with customers,
agents and others having business
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relationships with the HCFP Companies and their affiliates, and that there is a
danger that this good will, a proprietary asset of the HCFP Companies and their
affiliates, may follow Employee if and when his relationship with the
Corporation is terminated.
(d) Employee and the Corporation acknowledge and agree that these
circumstances require that Employee agree to certain non-competition terms.
2.2 Non-Competition and Non-Solicitation.
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(a) For purposes of this Agreement, the "Non-Competition Period" shall
include (i) the Employment Period (as defined in paragraph 4.1 of this
Agreement), and (ii) the twelve (12) months immediately following the
termination of Employee's employment with the Corporation pursuant to paragraph
4.2(a) and (b) of this Agreement. The term "Territory" shall include all states
of the United States, the District of Columbia, and all United States
territories and possessions.
(b) For purposes of this Agreement, the term "compete" shall mean to
engage in any sales and marketing efforts to obtain financing for any "small- to
medium-size health care company, " the term "small- to medium-size health care
company" means a health care company with annual revenues up to and including
$250 million. and the term "business of the HCFP Companies" means engaging in
any and all financing, management, consulting, or advisory activities directed
to the small-to-medium size health care company market.
(c) For purposes of this Agreement, the term "HCFP Companies" shall
mean and include the Corporation, HCFP Funding, Inc., a Delaware corporation,
and any other corporations, partnerships, limited liability companies, firms,
associations or other entities in which the Corporation has (directly or
indirectly) a more than fifty percent (50%) equity ownership interest.
(d) During the Non-Competition Period, Employee will not, directly or
indirectly, either individually or as owner, partner, agent, joint venturer,
independent contractor, shareholder, security holder, employee, consultant or
otherwise, except for the account of and on behalf of the HCFP Companies or
their affiliates, compete with the HCFP Companies or any of their affiliates in
any manner whatsoever within the Territory. This prohibition, however, shall
apply only if Employee's employment is terminated pursuant to paragraphs (a) or
(b) of paragraph 4.2 of this Agreement. During the Employment Period, Employee
shall report and make available to the HCFP Companies in a prompt and timely
manner all business opportunities which are within the scope of the business of
the HCFP Companies or their affiliates and which become available to Employee or
of which he has knowledge.
(e) During the Non-Competition Period, Employee will not, directly or
indirectly, either individually or as owner, partner, agent, joint venturer,
independent contractor, shareholder, security holder, employee, consultant or
otherwise (except during the Employment
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Period for the account and on behalf of the HCFP Companies or their affiliates),
solicit, attempt to solicit or otherwise engage the services of, or become
associated in any business that may compete with the HCFP Companies or their
subsidiaries or affiliates, with any person who was an employee, officer or
director of the HCFP Companies or any of their affiliates during the 12 months
preceding the date Employee's employment with the Corporation was terminated.
(f) Anything in this Agreement to the contrary notwithstanding,
nothing in this paragraph 2.2 shall be construed to prevent Employee from
owning, as an investment, not more than 1% of a class of equity securities
issued by any company that competes with the HCFP Companies or their affiliates
and that is publicly traded and has a class of securities registered under
paragraph 12 of the Securities Exchange Act of 1934.
2.3 Trade Secrets. Employee will keep confidential any trade secrets
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or confidential or proprietary information of the HCFP Companies and their
affiliates which are now known to him or which hereafter may become known to him
as a result of his employment or association with the Corporation and shall not
at any time directly or indirectly disclose any such information to any person,
firm or corporation, or use the same in any way other than in connection with
the business of the HCFP Companies and their affiliates during and at all times
after the expiration of the Employment Period. For purposes of this Agreement,
"trade secrets or confidential proprietary information" means information unique
to the HCFP Companies or any of their affiliates which has a significant
business purpose and is not known or generally available from sources outside
the HCFP Companies or any of their affiliates or typical of industry practice
(excluding information obtained and professional relationships developed by
Employee prior to his association with the Corporation on November 1, 1995).
3. The Corporation's Remedies for Breach. It is recognized that damages
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in the event of a breach of paragraph 2 by Employee would be difficult, if not
impossible, to ascertain, and it is therefore agreed that the Corporation, in
addition to and without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and Employee hereby waives
any and all defenses he may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
The existence of this right shall not preclude any other rights and remedies at
law or in equity which the Corporation may have.
4. Employment Period.
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4.1 Duration and Extension. The employment period of Employee (the
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"Employment Period") shall begin on the date of this Agreement and shall
continue until the earliest of (i) the close of business on the day immediately
preceding the third anniversary of the date of this Agreement, (ii) Employee's
normal retirement date under the Corporation's retirement plan as in effect on
the date of this Agreement ("Normal Retirement Date"), (iii) the death or Total
Disability of Employee, or (iv) an earlier termination pursuant to paragraph 4.2
of
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this Agreement. Following the termination of the Employment Period, the
Corporation shall have no further obligation to Employee.
4.2 Termination of Employment.
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(a) Employee may terminate his employment under this Agreement upon 30
days prior written notice to the Corporation. During the 30-day period
following Employee's notice of termination, and if so requested by the
Corporation, Employee will perform his regular duties and, in addition, will
perform those consulting services that may be requested by the Corporation to
assist in the orderly transition of Employee's duties to another person or
persons and/or to assist in the training of Employee's replacement.
(b) The Corporation may immediately terminate the employment of
Employee for Cause upon written notice to Employee of the termination ("Notice
of Termination for Cause"). Upon the termination of Employee for Cause, the
Corporation will have no further obligation to Employee except for payment of
all accrued salary and benefits up to the date of termination.
(c) If the Corporation terminates Employee's employment without Cause,
Employee shall be entitled to continue to receive compensation and benefits as
provided in paragraph 1.2 of this Agreement for a period of one year following
the date of the termination.
(d) The employment of Employee will be automatically terminated by his
death or Total Disability. If Employee dies or suffers a Total Disability
while this Agreement is in effect, the Corporation will pay to Employee's spouse
(or if he is not married at the time of his death, to his estate) compensation
under paragraph 1.2 as would be accrued through the end of the month in which
his employment terminated.
4.3 Return of the Corporation's Property. Employee authorizes the
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Corporation to withhold any amounts due to him until all property of the
Corporation entrusted to Employee by the Corporation at any time during his
employment has been returned to The Corporation. Employee authorizes the
Corporation to deduct from any amounts otherwise due to him, an amount equal to
any outstanding advances made by the Corporation to him or on his behalf, any
obligations he incurred for which he is responsible, and any amounts otherwise
owed by him to the Corporation.
4.4 Definitions. The following words shall have the specified
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meanings when used in the paragraphs specified:
(a) In this Agreement, the term "Cause" means an action or failure to
act by Employee constituting (i) fraud, misappropriation or intentional material
damage to the property or business of the Corporation, the commission of an act
of deliberate and material dishonesty, commission of a crime resulting in a fine
of $10,000 or more and/or imprisonment of
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six months or more, or causing the Corporation to commit such a crime; or (ii)
continuance of willful and repeated failure by Employee to perform his duties in
compliance with this Agreement after written notice to Employee by the President
specifying the failure and the failure to cure the deficient performance within
30 days after receipt of the written notice.
(b) In this Agreement, the term "Total Disability" means any
incapacity, injury, illness or other physical or mental condition of Employee
that, in the opinion of a physician selected by the Corporation, results in the
inability of Employee, for a period of six months or more during any twelve
month period, to perform substantially the duties performed or required to be
performed by Employee under this Agreement before the disability.
5. Marketing Service Agreement; The Option
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(a) Termination of Marketing Service Agreement. Beginning on the date
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of this Agreement, except as is expressly provided in this paragraph 5, Employee
and HealthPartners Funding Limited Partnership, a Delaware Limited Partnership
(the "Partnership") that is an affiliate of the Corporation, hereby terminate
the Marketing Services Agreement. The Partnership joins in the execution of
this Agreement solely for the purposes of this paragraph 5. The Corporation
expressly ratifies the grant of options to Employee pursuant to paragraph 1.3(a)
of the Marketing Services Agreement (the "Option"), and, to the extent any
portion of the Option is unexercised as of the date of this Agreement, Employee
shall continue to hold the Option in accordance with the terms of this paragraph
5.
(b) Reservation of Stock. The Corporation shall reserve and keep
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available the number of shares that will satisfy the requirements of the
Option. Appropriate adjustment shall be made to the number of shares subject to
the Option to give effect to any stock splits, subdivisions, combinations or
stock dividends occurring after the effective date of the Marketing Services
Agreement, so that immediately after the distribution date of the stock dividend
or the effective date of the subdivision, stock split or combination, as the
case may be, Employee shall be entitled to purchase the number of shares that he
would have held after the stock dividend, subdivision, stock split or
combination, as the case may be, at the total price he would have paid for the
shares if he had exercised the Option immediately before the event. The
decision of the Board as to the amount and timing of any adjustment shall be
binding and conclusive on all parties.
(c) Reorganization; Reclassification. If at anytime following the
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effective date of the Marketing Services Agreement, any capital reorganization
or reclassification of the capital stock of the Corporation shall be effected in
such a way that the then holders of capital stock shall be entitled to receive
stock, securities or assets with respect to or in exchange for their capital
stock, then, as a condition of the reorganization or reclassification, lawful
and adequate
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provisions shall be made that grant Employee the right to purchase and receive,
upon the basis and upon the terms and conditions specified in the Option and in
lieu of the shares purchasable immediately before and receivable upon the
exercise of the Option, the shares of stock, securities or assets that may be
issued or payable with respect to or in exchange for a number of outstanding
shares equal in value to the outstanding shares purchasable immediately before
and receivable upon the exercise of the Option. In any such case, appropriate
provision shall be made with respect to the rights and interests of Employee to
the end that the provisions of this Agreement (including, without limitation, to
the extent provided in this Agreement and in the Marketing Services Agreement,
provisions for adjustments of the number of shares purchasable and receivable
upon the exercise of the Option) shall thereafter be applicable, as nearly as
may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of the Option.
(d) Notice of Adjustment. The Corporation shall give notice to
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Employee as soon as practicable after any adjustment of the exercise price or of
the number of shares purchasable upon exercise of the Option. The notice shall
state the exercise price resulting from the adjustment and the increase or
decrease, if any, in the number of shares purchasable at that price upon the
exercise of the Option, setting forth in reasonable detail the method of
calculation and the facts upon which the calculation is made.
(e) Sale of the Corporation.
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(i) Definitions. As used in the Option, the following terms
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shall have the meaning set forth below:
(A) "Sale of the Corporation" shall mean a transaction in
which an Independent Third Party or a group of
Independent Third Parties acquires (1) all of the issued
and outstanding capital stock of the Corporation,
whether by merger, consolidation or sale or transfer of
stock, or (2) all or substantially all of the
Corporation's assets.
(B) "Independent Third Party" shall mean any person or
entity who, immediately before the contemplated
transaction, does not own in excess of 5% of the
Corporation's common stock on a fully diluted basis (a
"5% Owner"), who is not controlling,
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controlled by or under common control with any 5% Owner,
and who is not a family member of any 5% Owner.
(ii) Sale of the Corporation. In the event of any Sale of the
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Corporation, Employee shall be obligated to exercise the Option and sell the
shares of common stock in connection with the Sale of the Corporation, except
that in lieu of exercising the Option, Employee shall be entitled to surrender
the Option back to the Corporation.
(f) Notices of Stock Dividends, Redemptions, Subscriptions,
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Reclassifications, Consolidations, Mergers, etc. If, at any time: (i) the
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Corporation shall declare a dividend on its common stock; (ii) the Corporation
shall authorize the granting to the holders of its common stock of rights to
subscribe for or purchase any shares of capital stock of any class or of any
other rights; or (iii) there shall be any capital reorganizations, or
reclassification of the capital stock of the Corporation, or consolidation or
merger of the Corporation with, or sale of all or substantially all of its
assets to, another corporation or firm; or (iv) there shall be filed a
registration statement pursuant to the Securities Act of 1933, as amended; or
(v) there shall be a redemption or repurchase in excess of an aggregate of
$1,000,000 in one transaction of the Corporation's equity securities; or (vi)
there shall be a voluntary or involuntary dissolution, liquidation or winding up
of the Corporation (items (i) through (vi) above are referred to as "Notice
Events"); then, at least ten (10) days before the applicable record date
specified below or, in the absence of a record date, the date the Notice Event
is expected to become effective, the Corporation shall deliver notice to
Employee summarizing the Notice Event and stating, as applicable, the record
date (or if a record is not taken the date as of which the rights of the
shareholders of record are to be determined) the date on which the Notice Event
is expected to become effective, and, if applicable, the date as of which it is
expected the holders of capital stock of record shall be entitled to effect any
change of their capital stock for cash, securities or other property deliverable
upon the Notice Event.
(g) Exercise Period. The Option will expire on October 31, 2005.
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(h) Limitation Upon Transfer of Option. The Option may not be
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assigned (except by will or intestacy), pledged or hypothecated, and shall not
be subject to execution, attachment or similar process. Upon any attempt to
transfer the Option, or to assign, pledge, hypothecate or otherwise dispose of
the Option in violation of this provision, or upon the levy of any attachment or
similar process upon the Option, the Option shall immediately lapse and become
null and void.
(i) Termination and Forfeiture of Option. If Employee's employment
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under this Agreement is terminated by the Corporation without Cause, any
unexercised portion of the Option of Employee will terminate, be forfeited and
will lapse unless it is exercised by Employee by October 31, 2005. If
Employee's employment under this Agreement is terminated pursuant to
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paragraph 4.2(a) or (b) of this Agreement, any unexercised portion of the Option
shall immediately terminate and be null and void, and the Corporation shall have
the right, but not the obligation, to purchase from Employee all shares of stock
then held by Employee as a result of the exercise of the Option at a price equal
to the Option price for the shares, provided, however, (A) if the termination
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occurs on or after October 1, 1996 but before October 1, 1997, Employee shall be
entitled to retain a total of one-third (1/3) of such shares and unexercised
portion of the Option, (B) if the termination occurs on or after October 1, 1997
but before October 1, 1998, Employee shall be permitted to retain a total of
two-thirds of such shares and unexercised portion of the Option, and (C) if the
termination occurs after October 1, 1998, Employee shall be entitled to retain
all of such shares and/or Options under the same terms as if this Agreement were
terminated without Cause. The Corporation may exercise its rights under this
paragraph 5(i) by giving Employee written notice, specifying the number of
shares to be purchased, the purchase price, the closing date and the location of
the closing, within ninety (90) days of the Notice of Termination for Cause.
(j) Exercise of Options. To exercise an Option, Employee shall give
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written notice to the Corporation's Secretary, substantially in the form of
Exhibit A to this Agreement, at the Corporation's principal place of business,
accompanied by full payment for the shares and such written evidence as the
Corporation may reasonably require that Employee is purchasing the shares for
investment purposes and not with a view toward distribution. A statement as to
Employee's investment purpose will not be required, however, if the shares
underlying the Option are registered under the Securities Act of 1933, as
amended.
(k) Manner of Payment. Employee may pay the Option price for the
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shares being purchased upon exercise of an Option (i) by delivering cash or a
check made payable to the order of the Corporation, (ii) by delivering shares of
the Corporation's common stock, to the extent the Fair Market Value of the
shares on the date of exercise of the Option equals the Option price for the
shares being purchased, (iii) by surrendering to the Corporation Options to
purchase shares, to the extent the difference between the exercise price of the
Options and the market price of the underlying shares (the "spread") or (iv) by
complying with a combination of (i), (ii) and (iii) above. The Corporation
shall have the right to withhold and deduct from the number of shares
deliverable upon the exercise of any Option a number of shares having an
aggregate Fair Market Value equal to the amount of any taxes and other charges
that the Corporation is obligated to withhold or deduct from amounts payable to
Employee.
(l) Fair Market Value. If shares of the Corporation's common stock
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are not listed and actively traded on any established national securities
exchange, the "Fair Market Value" per share as of any particular date shall be
determined by the Board. If the shares are so listed and actively traded, the
"Fair Market Value" per share as of any particular date shall be the closing
price per share on the trading day immediately preceding that date on the
national securities exchange on which the shares are listed on that date.
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(m) Share Certificates. Certificates representing shares that have
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been issued pursuant to the exercise of the Option and that have not been
registered under the Securities Act of 1933 shall bear a legend to the following
effect:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be sold, pledged or transferred unless registered under the
provisions of that Act or unless an opinion of counsel is
delivered to the Corporation, from counsel acceptable to the
Corporation, stating that an exemption from registration is
available."
The Corporation shall not be required to transfer or deliver any
certificate or certificates for shares purchased upon any exercise of an Option
until after compliance with all then applicable requirements of law.
(n) Registration. If the Corporation shall be advised by its counsel
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that shares deliverable upon any exercise of an Option are required to be
registered under the Securities Act of 1933, or that the consent of any other
authority is required for their issuance, the Corporation may effect the
registration or obtain the consent; delivery of the shares by the Corporation
may be deferred until the registration is effected or the consent obtained.
The Corporation agrees that Employee shall have registration rights pari passu
with those that may be obtained by the existing executive officers of the
Corporation.
(o) Issuance of Shares. No shares will be issued until full payment
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for the shares has been made. Employee shall have no rights as a shareholder
with respect to shares underlying the Options until the date an Option shall
have been properly exercised and all conditions to the exercise of the Option
and purchase of the shares shall have been complied with in all respects, to the
satisfaction of the Corporation. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is before the date the
Option is exercised, except as otherwise provided in this Agreement.
(p) Survival of Paragraph 5. Notwithstanding anything to the contrary
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in this Agreement, this paragraph 5 shall survive the termination of this
Agreement.
6. Notices. Any notices, requests, demands and other communications
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provided for by this Agreement shall be sufficient if in writing and personally
delivered or sent by registered or certified mail to Employee at the last
address he has filed in writing with the Corporation or, in the case of the
Corporation, at its principal executive offices.
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7. Binding Agreement. This Agreement shall be effective as of the date
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first above written and shall be binding upon and inure to the benefit of
Employee, his executors, administrators and personal representatives. The
rights and obligations of the Corporation under this Agreement shall inure to
the benefit of and shall be binding upon any successor of the Corporation.
Notwithstanding the foregoing, this Agreement may not be assigned by the
Corporation without the consent of Employee and, in the case of a successor by
transfer of all or substantially all of the assets of the Corporation, or any
other successor in which the Corporation does not cease to exist by operation of
the transaction in question as a matter of law, the Corporation shall not be
relieved of its obligations under this Agreement.
8. Entire Agreement. This Agreement constitutes the entire understanding
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of Employee and the Corporation with respect to its subject matter hereof and
supersedes any and all prior understandings, whether written or oral. This
Agreement may not be changed, modified, or discharged orally, but only by an
instrument in writing signed by the parties.
9. Separability. Should any provision of this Agreement be deemed
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invalid or unenforceable as contrary to applicable law, the parties agree that
such provision shall automatically be deemed to be reformed as to be consistent
with applicable law.
10. Governing Law. This Agreement shall be governed by the laws of the
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State of Maryland, without regard to conflict or choice of laws.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
ATTEST: THE CORPORATION:
HEALTHCARE FINANCIAL PARTNERS, INC.
a Delaware corporation
Xxxxxx X. Xxxxxxxx, Xx. By: Xxxxx X. Xxxxx
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Secretary Name: Xxxxx X. Xxxxx
Its: Executive Vice President
WITNESS: EMPLOYEE:
Xxxxxxxx Xxxxxxxx Xxxxxx X. Silver
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Xxxxxx X. Silver
PARTNERSHIP:
(As to paragraph 5 of the Agreement)
By: HEALTHCARE FINANCIAL
PARTNERS, INC.
a Delaware corporation
as successor-in-interest to
HEALTHPARTNERS FUNDING
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Xxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxxx, Xx.
Its: Secretary
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EXHIBIT A
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Date:
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Corporate Secretary
HealthCare Financial Partners, Inc.
To the Secretary:
I hereby exercise my option to purchase shares of common stock,
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par value $.01 per share ("Shares"), of HealthCare Financial Partners, Inc. in
accordance with the terms set forth in the Employment Agreement with Xxxxxx X.
Silver dated as of October 1, 1996.
In full payment for the exercise, please find enclosed:
[ ] check in the amount of $
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[ ] Shares having a Fair Market Value of $
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[ ] Options bearing an exercise price of $ , to purchase
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Shares having a Fair Market Value of $ , resulting in
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a "spread" of $ .
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I authorize the Corporation to withhold a number of Shares equal to any
withholding obligation applicable to me.
Very truly yours,
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Print Name
14
