Exhibit 10.23
RESTRICTED STOCK
AGREEMENT
This Restricted
Stock Agreement (“Agreement”) is made and entered into
as of the 7 th
day of
March, 2007, by and among MCP-MSC Acquisition, Inc., a Delaware
corporation (the “Company”), and Joseph P. Delaney
(“Stockholder”).
WHEREAS, the Company desires to
issue to the Stockholder 250,000 shares (the “Restricted
Shares”) of the common stock in the Company, $0.001 par value
per share (“Common Stock”), subject to the terms and
conditions set forth herein;
NOW, THEREFORE, the Stockholder and
the Company agree as follows:
1. Acquisition of Restricted
Shares . The Stockholder hereby purchases from the Company, and
the Company hereby sells to the Stockholder, the Restricted Shares
at a purchase price of $0.001 per share (the “Original
Purchase Price”). The Restricted Shares and any shares of
capital stock of the Company acquired by the Stockholder as a
result of any subdivision, combination or reclassification of
Restricted Shares into a greater or smaller number of shares,
recapitalization, reorganization, stock split, stock dividend or
similar event (each a “Recapitalization Event”), are
referred to herein as the “Shares” and such Shares are
subject to the terms and conditions of this Agreement.
2. Representations and
Warranties . The Stockholder represents, warrants and covenants
as follows:
2.1. The Stockholder has full legal
capacity, power, and authority to execute and deliver this
Agreement and the Stockholders’ Agreement dated as of
March 31, 2005, as from time to time in effect, among the
Issuer, Monitor Clipper Equity Partners II, L.P., Monitor Clipper
Equity Partners II (NQP), L.P. and the other parties thereto (the
“Stockholders’ Agreement”) and to perform the
Stockholder’s obligations hereunder and thereunder. This
Agreement and the Stockholders’ Agreement has been duly
executed and delivered by the Stockholder and are the legal, valid,
and binding obligations of the Stockholder enforceable against the
Stockholder in accordance with the terms hereof and
thereof.
2.2. The execution, delivery, and
performance by the Stockholder of this Agreement and the
Stockholders’ Agreement and the consummation by the
Stockholder of the transactions contemplated hereby and thereby
will not, with or without the giving of notice or lapse of time, or
both (i) violate any provision of law, statute, rule or
regulation to which the Stockholder is subject, (ii) violate
any order, judgment or decree applicable to the Stockholder, or
(iii) conflict with, or result in a breach of default under,
any term or condition of any agreement or other instrument to which
the Stockholder is a party or by which the Stockholder is
bound.
2.3. Except as provided by this
Agreement and the Stockholders’ Agreement, the Stockholder is
not a party to or subject to any agreement or arrangement with
respect to the voting or transfer of the Shares.
2.4. The Stockholder has thoroughly
reviewed this Agreement and the Stockholders’ Agreement in
their entirety. The Stockholder has had an opportunity to obtain
the advice of
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counsel (other than counsel to the Company or
its affiliates) prior to executing this Agreement, and fully
understands all provisions of this Agreement and the
Stockholders’ Agreement.
2.5. The Stockholder is acquiring
the Shares solely for the Stockholder’s own account for
investment and not with a view to or for sale in connection with
any distribution of the Shares or any portion thereof and not with
any present intention of selling, offering to sell or otherwise
disposing of or distributing the Shares or any portion thereof in
any transaction other than a transaction exempt from registration
under the Securities Act of 1933, as amended (the “Securities
Act”). The Stockholder further represents that the entire
legal and beneficial interest of the Shares is being acquired, and
will be held, for the account of the Stockholder only and neither
in whole nor in part for any other person.
2.6. The Stockholder was not
presented with or solicited by any form of general solicitation or
general advertising, including, but not limited to, any
advertisement, article, notice, or other communication published in
any newspaper, magazine, or similar media, or broadcast over
television, radio or similar communications media, or presented at
any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
2.7. The Stockholder’s
principal residence is located at the address indicated in Exhibit
A hereto.
2.8. The Stockholder is aware of the
Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Shares. The
Stockholder further represents and warrants that the Stockholder
has discussed the Company and its plans, operations and financial
condition with its officers, has received all such information as
the Stockholder deems necessary and appropriate to enable the
Stockholder to evaluate the financial risk inherent in acquiring
the Shares and has received satisfactory and complete information
concerning the business and financial condition of the Company in
response to all inquiries in respect thereof.
2.9. The Stockholder has either
(i) a preexisting personal or business relationship with the
Company or any of its officers, directors, or controlling persons,
consisting of personal or business contacts of a nature and
duration to enable the Stockholder to be aware of the character,
business acumen and general business and financial circumstances of
the person with whom such relationship exists, or (ii) such
knowledge and experience in financial and business matters as to
make the Stockholder capable of evaluating the merits and risks of
an investment in the Shares and to protect the Stockholder’s
own interests in the transaction, or (iii) both such
relationship and such knowledge and experience.
2.10. The Stockholder can afford the
complete loss of the value of the Shares and is able to bear the
economic risk of holding such Shares for an indefinite
period.
2.11. The Stockholder understands
that (x) the Shares have not been registered under the
Securities Act and are “restricted securities” within
the meaning of Rule 144 under the Securities Act, (y) the
Shares cannot be sold, transferred or otherwise disposed of unless
they are subsequently registered under the Securities Act or an
exemption from registration is then available and (z) in any
event, the exemption from registration under Rule 144 will not
be
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available unless a public market then exists for
the Common Stock, adequate information concerning the Company is
then available to the public, and other terms and conditions of
Rule 144 are complied with.
2.12. The Stockholder has executed
and delivered to the Company a joinder to the Stockholders’
Agreement pursuant to which Stockholder became a party to the
Stockholders’ Agreement as an “Other Investor”
(as such term is used in the Stockholders’ Agreement). The
Stockholder understands and agrees that all of the Shares shall be
subject to the Stockholders’ Agreement as “Other
Investor Shares” (as such term is used in the
Stockholders’ Agreement), it being understood for the
avoidance of doubt that all shares of Common Stock of the Company
acquired by the Stockholder pursuant to any exercise under a stock
option plan or agreement to which he may be a party shall be
subject to the Stockholders’ Agreement as “Manager
Shares” (as such term is used in the Stockholders’
Agreement).
2.13. Subject to the obligations of
the Company to Executive pursuant to the provisions of Sections
4(c) of the Employment Agreement, the Stockholder agrees to pay to
the Company from time to time any applicable withholding and
employment taxes that will be owed as a result of
Stockholder’s receipt of the Shares and the vesting
thereof.
2.14. Stockholder has had the
opportunity to consult with his own tax advisor regarding the tax
consequences of entering into this Agreement.
3. Repurchase Rights.
3.1 If the Stockholder’s
employment with the Company or any of its subsidiaries
(collectively, “MSC”) is terminated by MSC or by the
Stockholder voluntarily for any reason, or no reason, with or
without “Cause” or “Good Reason” (as each
such term is used in the that certain Amended and Restated
Employment Agreement dated as of the date hereof between
MSC-Medical Services Company (“MSC”) and Stockholder
(the “Employment Agreement”)), the Company (or, at the
Company’s election, any parent or subsidiary of the Company)
shall have the right to purchase (“Repurchase Right”),
and the Stockholder shall, at the election of the Company, be
obligated to sell all or any part of the Unvested Shares (as such
term is defined below) owned by him at the time of termination,
and, if the Stockholder’s employment with MSC is terminated
by MSC for Cause or the Stockholder’s violation of any of
Sections 10, 11 or 12 of the Employment Agreement, all or any part
of the Vested Shares (as such term is defined below), in each case
at the purchase price and on the terms provided in
Section 3.2.
3.2 The Company may exercise its
Repurchase Right by giving written notice to the Stockholder (or
his legal representatives) at any time within 60 days following the
termination of his employment with MSC, specifying the number of
Vested Shares and Unvested Shares (as applicable) it wishes to
purchase. The purchase price per Vested Share and Unvested Share
shall be its Original Purchase Price (subject to equitable
adjustment upon the occurren
