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EXHIBIT
10.47
EMPLOYMENT
AGREEMENT
THIS AGREEMENT (“
Agreement ”) dated as of December 2, 2004 is entered
into by and between MSC-Medical Services Company, a Florida
corporation (the “ Company ”), and Linda Hirschi
(“ Employee ”).
Recitals
The Company, through its
Board of Directors (the “Board”), desires to retain the
services of Employee, and Employee desires to be retained by the
Company, on the terms and conditions set forth in this
Agreement.
Agreement
For and in consideration of
the foregoing and the mutual covenants of the parties herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. EMPLOYMENT . The
Company hereby employs Employee to serve in the capacities
described herein, and Employee hereby accepts such employment and
agrees to perform the services described herein upon the terms and
conditions hereinafter set forth.
2. TERM . The
employment of Employee under this Agreement, shall be for a period
of three (3) years from the date hereof (the “Initial
Term”). Thereafter, this Agreement shall automatically renew
for successive one (1) year periods, unless either party
provides written notice to the other party of its intention to
terminate this Agreement thirty (30) days prior to the
expiration of the term (each a “Renewal Term” and
together with the Initial Term, the “Term”). The Term
shall be subject to earlier termination in accordance with the
terms and conditions of this Agreement.
3. DUTIES . Employee
shall serve as and have the title of Vice President, National
Accounts and shall have such duties as assigned by the Chief
Executive Officer or the Board of Directors of the Company from
time to time. Employee agrees to devote her full business time,
energy, skills and best efforts to such employment while so
employed. Nothing in this Agreement shall preclude Employee from
engaging in charitable and community affairs so long as, in the
reasonable determination of the Board, such activities do not
interfere with her duties and responsibilities hereunder or from
serving, subject to the prior approval of the Board, as a member of
the board of directors or as a trustee of any other corporation,
association or entity.
4. COMPENSATION
.
(a) Base Compensation
. The Company shall pay Employee, and Employee agrees to accept, an
initial base compensation at the initial rate of One Hundred
Seventy Five Thousand Dollars ($180,000) per year until
December 31, 2004, and thereafter at the rate of Two Hundred
Thousand Dollars ($200,000) per year, in equal installments no less
frequently than monthly, through the Term (the “Base
Compensation”). The Base Compensation shall be reviewed by
the Company annually and subject to increases according to the
performance of the Employee.
(b) Annual Bonus
Compensation . Beginning in fiscal year 2005, Employee shall be
eligible for an annual bonus based on the realization of financial
and performance goals of the Company and the Employee. Assuming
satisfaction of such goals, the bonus will be a maximum of One
hundred Thousand Dollars ($100,000).
(c) Options upon Change in
Control . In the event that there is a Change of Control (as
defined below) prior to January 1, 2006 and the Employee is
employed by the Company on the date of such Change in Control, the
Employee shall be eligible to participate in the Company’s
successor’s option plan following such Change in Control, to
the extent such successor has an option plan at such
time.
For purposes of this
Agreement, a “Change in Control” shall be deemed to
occur if any person or group of persons shall acquire
(i) direct or indirect beneficial ownership (whether as a
result of stock ownership, revocable or irrevocable proxies or
otherwise) of securities of the MSC Acquisition, Inc. (the
“Parent”) or the Company (or any successor of the
Parent or the Company), pursuant to one or more transactions, such
that after consummation and as a result of such transaction, such
person possesses the voting power under normal circumstances to
elect a majority of the Board of Directors of the Parent or the
Board, as applicable, or (ii) substantially all or a material
(50% or more) portion of the assets of the Parent or the Company
(or any of their successors) . For purposes of this Agreement, a
“person” shall mean any person, corporation,
partnership, joint venture or other entity or any group (as such
term is defined for purposes of Section 13(d) of the Exchange
Act), other than the Parent or any person controlled by the Parent,
and “beneficial ownership” shall be determined in
accordance with Rule 13d-3 under the Exchange Act.
5. BENEFITS
.
(a) Generally .
Employee shall be eligible for fringe benefits pursuant to any
pension, retirement, or other employee fringe benefit plan that the
Company makes available to employees of the Company and for which
Employee will qualify according to her eligibility under the
provisions thereof.
(b) Health and Disability
Insurance . Employee shall be entitled to participate in health
and disability insurance plans that the Company offers to other
employees of the Company from time to time, consistent with past
practice.
(c) Vacation . During
the Term of this Agreement, Employee shall be entitled to ten
(10) vacation days, plus Company holidays and sick days in
accordance with the Company’s policies and
procedures.
6. EXPENSES . Except
as otherwise agreed to herein, Employee shall be reimbursed for all
usual business expenses incurred on behalf of the Company, in
accordance with Company practices and procedures.
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7. TERMINATION . The
term of Employee’s employment under this Agreement may be
terminated prior to expiration of the Term provided in
Section 2 hereof only in accordance with the following
sections.
(a) For Cause . This
Agreement may be immediately terminated by the Company for Cause.
For purposes of this Agreement, the term “Cause” shall
include, without limitation, the termination of Employee by the
Company as a result of the existence or occurrence of one or more
of the following conditions or events:
(i) the failure of Employee
to perform her duties hereunder, or the breach of any provision
hereof, which failure or breach is not cured within five
(5) days after written notice thereof to Employee;
(ii) Employee’s willful
misconduct in connection with the performance of her duties as an
employee or officer of the Company;
(iii) commission by Employee
of any act of fraud or material misrepresentation or a material act
of misappropriation in connection with her duties as an employee or
officer of the Company;
(iv) commission of Employee
of any crime which constitutes a felony;
(v) the entry of a judgment
or order enjoining or preventing Employee from such activities as
are material or essential for Employee to perform her services as
required by this Agreement; or
(vi) willful and deliberate
conduct or activities by Employee which could foreseeably result in
material damage to the business of the Company.
(b) Mutual .
Employee’s employment under this Agreement may be terminated
upon mutual written agreement of the Company and
Employee.
(c) Without Cause .
The Company and the Employee shall have the right to terminate this
Agreement and the Employee’s employment with the Company at
any time without Cause.
(d) Death . In the
event of the death of Employee, the employment of Employee shall
terminate immediately.
(e) Disability . If,
during Employee’s employment with the Company, Employee shall
become permanently disabled and unable to perform her duties as
required herein (“Disability”) for a total of one
hundred eighty (180) days in any twelve (12) month period
then the Company may, upon thirty (30) days written notice to
Employee, terminate Employee’s employment under this
Agreement.
8. SEVERANCE . In the
event of the termination of Employee’s employment under this
Agreement for any reason, the Company shall provide the payments
and benefits to Employee as indicated below:
(a) With Cause or
Voluntary Termination by Employee . If Employee is terminated
for Cause (as defined in Section 7(a) of this Agreement), or
if Employee voluntarily terminates her employment with the Company,
the Company shall be obligated only to continue to pay to Employee
her Base Compensation, if any, earned up to the date of termination
and shall reimburse Employee for any expenses to which Employee is
due reimbursement by the Company under Section 7 hereof up
until the date of termination.
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(b) Without Cause, Death
or Disability . In the event that the Company shall terminate
Employee without Cause, or upon the death or Disability of
Employee, the Company shall be obligated to continue to pay full
Base Compensation and benefits to Employee for a period of six
(6) months after the date of termination as if Employee had
not been so terminated.
9. NONCOMPETITION;
NONSOLICITATION . Employee agrees, to the extent and on the
terms set forth below, not to utilize her special knowledge of the
business of the Company and her relationships with customers and
suppliers of the Company or others to compete with the Company. For
a period beginning on the date hereof and ending two (2) years
from the date on which the Employee ceases to be employed by the
Company (the “Noncompete Period”), the Employee shall
not, except as an employee or agent of the Company, engage or have
an interest, anywhere in the United States of America or any other
geographic area where the Company did business as of the date
hereof or at any time during the Employee’s employment by the
Company or in which its products or services are or were marketed
or sold, alone or in association with others, as principal, agent,
partner, stockholder, or through the investment of capital, lending
of money or property, rendering of services or otherwise, in the
business of distributing, selling or marketing medical and
pharmaceutical supplies, equipment and services to the
workers’ compensation industry or any other business
competitive with or similar to that engaged in by the Company as of
the date hereof or by the Company at any time during Em
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