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Exhibit
10.47
RESTRICTED STOCK
AGREEMENT
This Restricted Stock
Agreement (“Agreement”) is made and entered into as of
the 16 th day
of May, 2008, by and among MCP-MSC Acquisition, Inc., a Delaware
corporation (the “Company”), and Thomas E. Moloney
(“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 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, subject to the permitted
transfers set forth herein, 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
.
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 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 MSC – Medical Services Company, a Florida
corporation and a subsidiary of the Company (“MSC”), to
Stockholder pursuant to the provisions of that certain letter
agreement dated as of the date hereof, 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 position as director with the Company is
terminated by the Company or by the Stockholder voluntarily for any
reason, or no reason, 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 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 directorship with the Company, specifying
the number Unvested Shares it wishes to purchase. The purchase
price per Unvested Share shall be its Original Purchase Price
(subject to equitable adjustment upon the occurrence of any
Recapitalization Event).
3.3 Within thirty
(30) days after receipt of the notice of the exercise of any
Repurchase Right described in this Agreement, the Stockholder (or
his legal representatives) shall deliver to the Company the
certificate(s), together with duly executed stock powers,
representing the Unvested Shares being repurchased by the
Compan
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