Exhibit 10.66
EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (“Agreement”) dated as of January 8,
2008 between Scottish Holdings, Inc. (the “Company”)
and Daniel Roth (the “Employee”) (together, the
“Parties”).
WHEREAS,
the Parties wish to establish the terms of Employee’s
continued employment with the Company.
Accordingly,
the Parties agree as follows:
1.
Employment and Acceptance. The Company shall employ the
Employee, and Employee shall accept employment, subject to the
terms of this Agreement, on May 1, 2007 (the “Effective
Date”).
2.
Term. Subject to earlier termination pursuant to
Section 5 of this Agreement, this Agreement and the employment
relationship hereunder shall continue from the Effective Date until
the second anniversary of the Effective Date and shall renew for
one (1) year intervals thereafter unless either party shall
have given at least sixty (60) days advanced written notice to
the other that it does not wish to extend the Term. As used in this
Agreement, the “Term” shall refer to the period
beginning on the Effective Date and ending on the date the
Employee’s employment terminates in accordance with this
Section 2 or Section 5. In the event of the
Employee’s termination of employment during the Term, the
Company’s obligation to continue to pay all base salary, as
adjusted, bonus and other benefits then accrued shall terminate
except as may be provided for in Section 5 of this
Agreement.
3.
Duties and Title.
3.1
Title. The Company shall employ the Employee to render
exclusive and full-time services to the Company and its
subsidiaries. The Employee shall serve in the capacity of Chief
Restructuring Officer, and shall report solely and directly to the
Chief Executive Officer of the Company. The Employee shall also
serve during the Term in executive positions for one or more of the
Company’s subsidiaries and affiliates for no additional
consideration.
3.2
Duties. The Employee will have such authority and
responsibilities and will perform such executive duties as are
customarily performed by a Chief Restructuring Officer of a company
in similar lines of business as the Company and its subsidiaries or
as may be assigned to Employee by the Chief Executive Officer of
the Company. The Employee will devote all his full working-time and
attention to the performance of such duties and to the promotion of
the business and interests of the Company and its
subsidiaries.
3.3
Location. The Employee shall perform his full-time services
to the Company and its subsidiaries in the Company’s
Charlotte, NC office; provided that the Employee
shall be required to travel as necessary to perform his duties
hereunder.
4.
Compensation and Benefits by the Company. As compensation
for all services rendered pursuant to this Agreement, the Company
shall provide the Employee the following during the Term:
4.1
Base Salary. During the Term, the Company will pay to the
Employee an annual base salary of $350,000, payable in accordance
with the customary payroll practices of the Company. The
Employee’s annual base salary shall be reviewed annually and
may be increased by the Company at its discretion during the Term.
The Employee’s base salary, as increased from time to time
shall be referred to herein as “Base Salary”.
4.2
Bonuses. During the Term, the Employee shall be eligible to
receive an annual bonus (“Bonus”) under a plan
established by the Company in the amount determined by the Board of
Directors of the Company (the “Board”) based upon
achievement of performance measures established by the Company and
approved by the Board. The Employee’s target bonus shall be
75% of Base Salary (the “Target Bonus”).
4.3
Participation in Employee Benefit Plans. The Employee shall
be entitled during the Term, if and to the extent eligible, to
participate in all of the applicable benefit plans of the Company,
which may be available to other senior executives of the Company.
The Company may at any time or from time to time amend, modify,
suspend or terminate any employee benefit plan, program or
arrangement for any reason without the Employee’s consent if
such amendment, modification, suspension or termination is
consistent with the amendment, modification, suspension or
termination for other executives of the Company. Notwithstanding
the foregoing, the Employee shall be entitled to 20 days of
vacation for the 2007 calendar year, the carry-over of such
vacation days shall be in accordance with the vacation policy of
the Company.
4.4
Equity Compensation. During the Term, the Employee shall be
eligible to participate in an equity incentive compensation plan
established by the Company or an affiliate of the Company (the
“Equity Incentive Plan”) pursuant to the terms of the
Equity Incentive Plan and any applicable agreements thereunder as
determined from time to time by the Board.
4.5
Expense Reimbursement. During the Term, the Employee shall
be entitled to receive reimbursement for all appropriate business
expenses incurred by him in connection with his duties under this
Agreement in accordance with the policies of the Company as in
effect from time to time.
4.6
Relocation. Should the Employee decide to relocate his
primary residence to Charlotte, N.C., the Company shall
(a) reimburse the Employee (on a tax neutral grossed up basis)
for expenses reasonably incurred by the Employee (not to exceed
$75,000 in the aggregate) in connection with such relocation, in
accordance with the relocation policies of the Company (the
“Relocation Expenses”), and (b) pay to the
Employee a one-time relocation bonus of $25,000. In addition, the
Company shall provide the Employee with temporary housing and a
rental car in Charlotte, N.C. and transportation to Charlotte, N.C.
through the earlier of November 30, 2007 or such time as the
Employee has relocated his primary residence to Charlotte, N.C. If
the Employee has not relocated his primary residence to Charlotte,
N.C. by November 30, 2007, the Company shall reimburse the
Employee for his temporary housing starting December 1, 2007,
such reimbursed amounts not to exceed $75,000 in the aggregate (the
“Housing Expenses”). In the event that the Employee
relocates his primary residence to Charlotte, N.C. subsequent to
December 1, 2007, the Company shall reimburse the Employee for
the Relocation Expenses in an amount not to exceed the difference
of $75,000 minus the aggregate amount of Housing Expenses
reimbursed by the Company. For purposes of
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this
Section 4.6, the Employee shall not be deemed to have
relocated his primary residence to Charlotte, N.C. until such date
on which (i) he has sold his previous primary residence in New
York City or (ii) he has purchased a new primary residence in
Charlotte, N.C.
5.
Termination of Employment.
5.1
By the Company for Cause or by the Employee or Due to Death.
If: (i) the Employee’s employment terminates due to his
death; (ii) the Company terminates the Employee’s
employment with the Company for Cause (as defined below) or
(iii) the Employee terminates his employment for any reason,
the Employee, or the Employee’s legal representatives (as
appropriate), shall be entitled to receive the following (the
“Accrued Benefits”):
(a) the
Employee’s accrued but unpaid Base Salary and benefits set
forth in Section 4.3, if any, to the date of termination;
(b) the
unpaid portion of the Bonus, if any, relating to the calendar year
prior to the calendar year of the Employee’s death,
termination by the Company for Cause or by the Employee, payable in
accordance with Section 4.2; and
(c) expenses
reimbursable under Section 4.5 incurred but not yet reimbursed
to the Employee to the date of termination.
For
the purposes of this Agreement, “Cause” means, as
determined by the Board (or its designee), with respect to conduct
during the Employee’s employment with the Company, whether or
not committed during the Term, (i) commission of a felony by
Employee; (ii) acts of dishonesty by Employee resulting or
intending to result in personal gain or enrichment at the expense
of the Company or its subsidiaries; (iii) Employee’s
material breach of his obligations under this Agreement;
(iv) conduct by Employee in connection with his duties
hereunder that is fraudulent, unlawful or grossly negligent;
(v) engaging in personal conduct by Employee (including but
not limited to employee harassment or discrimination, the use or
possession at work of any illegal controlled substance) which
seriously discredits or damages the Company or its subsidiaries;
(vi) contravention of specific lawful direction from the person or
entity to whom the Employee reports or continuing inattention to or
continuing failure to adequately perform the duties to be performed
by Employee under the terms of Section 3.2 of this Agreement
or (vii) breach of the Employee’s covenants set forth in
Section 6 below before termination of employment; provided,
that, the Employee shall have fifteen (15) days after notice
from the Company to cure the deficiency leading to the Cause
determination (except with respect to (i) above), if curable.
A termination for “Cause” shall be effective
immediately (or on such other date set forth by the Company).
5.2
By the Company Without Cause or due to Disability. If during
the Term the Company terminates Employee’s employment without
Cause (which may be done at any time without prior notice) or due
to the Employee’s Disability (as defined below), upon
execution without revocation of a valid release agreement in a form
reasonably acceptable to the Company, the Employee shall be
entitled to receive:
(a) the
Accrued Benefits;
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(b) an
amount equal to the sum of the Employee’s Base Salary and
Target Bonus, payable in a lump sum, less standard income and
payroll tax withholding and other authorized deductions; and
(c) reimbursement
of the employer portion of the cost (consistent with the
Company’s policy for active employees) of continuation
coverage of group health coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”) for twelve (12) months or such earlier
date that the Employee is covered under another group health plan,
subject to the terms of the plans and applicable law.
The
Company shall have no obligation to provide the benefits set forth
above in the event that Employee breaches the provisions of
Section 6.
For the
purposes of this Agreement, “Disability” means a
determination by the Company in accordance with applicable law that
as a result of a physical or mental injury or illness, the Employee
is unable to perform the essential functions of his job with or
without reasonable accommodation for a period of (i) ninety
(90) consecutive days; or (ii) one hundred eighty (180)
days in any one (1) year period.
5.3
No Mitigation; No Offset. The Employee shall be under no
obligation to seek other employment after his termination of
employment with the Company and the obligations of the Company to
the Employee which arise upon the termination of his employment
pursuant to this Section 5 shall not be subject to mitigation
or offset.
5.4
Removal from any Boards and Position. If the
Employee’s employment is terminated for any reason under this
Agreement, he shall be deemed to resign (i) if a member, from
the Board or board of directors of any subsidiary of the Company or
any other board to which he has been appointed or nominated by or
on behalf of the Company and (ii) from any position with the
Company or any subsidiary of the Company, including, but not
limited to, as an officer of the Company and any of its
subsidiaries.
5.5
Nondisparagement. The Employee agrees that he will not at
any time (whether during or after the Term) publish or communicate
to any person or entity any Disparaging (as defined below) remarks,
comments or statements concerning the Company, its parents,
subsidiaries an
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