AMENDED AND RESTATED
EMPLOYMENT SEPARATION AGREEMENT
This Amended and Restated Employment Separation
Agreement (the “Agreement”), dated as of December 31,
2008, is entered into by and between PDI, Inc., a Delaware
corporation (the “Company”), having its principal place
of business at 1 Route 17 South, Saddle River, New Jersey 07458,
and Howard Drazner, residing
at (the
“Executive”).
WHEREAS, the Company and Executive previously
entered into an Employment Separation Agreement, effective as of
September 1, 2007 (the “Prior Agreement”);
and
WHEREAS, the Company and Executive desire to
amend and restate the Prior Agreement to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986,
as amended and the regulations promulgated thereunder (the
“Code”), and to make certain other clarifying changes,
with this Agreement to supersede the Prior Agreement in its
entirety.
NOW, THEREFORE, in consideration of the premises
and mutual agreements herein contained, the parties hereby agree as
follows:
1.
Employment .
In
connection with the Executive’s continued employment and
contingent upon the Executive’s execution of the
Company’s Confidentiality, Non-Solicitation and Covenant Not
to Compete Agreement, the Company shall employ the Executive as
President, Pharmakon, which employment shall terminate upon notice
by either party, for any reason. Executive
understands and agrees that Executive’s employment with the
Company is at will and can be terminated at any time by either
party, and for any or no reason.
2.
Termination Benefits .
a. In
further consideration for Executive’s continued employment
and agreement to execute the Company’s Confidentiality,
Non-Solicitation and Covenant Not to Compete Agreement, and
provided that, as of the 30 th day following his termination date, Executive
has executed the PDI Agreement and General Release given to him
upon termination which will be in substantially the same form as
the Agreement and General Release attached hereto (the
“Release”), any applicable revocation period has
expired and Executive has not revoked the Release during such
revocation period, the Company agrees that if it terminates the
Executive’s employment without “Cause” or due to
a “Change of Control”, or if Executive resigns for
“Good Reason,” as those terms are defined below, the
Company will provide the following compensation and benefits to
Executive:
i. The
Company will pay Executive a lump sum payment equal to the product
of twelve (12) times Executive’s Base Monthly Salary
(excluding incentives, bonuses, and other compensation), plus the
average of the cash incentive compensation paid to Executive during
the three (3) years immediately preceding the termination
date. Subject to Section 2(e) below, such payment shall
be made within forty-five (45) days after Executive’s
termination date.
ii. The
Company will reimburse Executive for the cost of the premiums for
COBRA group health continuation coverage under the Company’s
group health plan paid by Executive for coverage during the period
beginning following Executive’s termination date and ending
on the earlier of either: (a) first anniversary of
Executive’s termination date; or (b) the date on which
Executive becomes eligible for other group health coverage,
provided that no reimbursement shall be paid unless and until
Executive submits proof of payment acceptable to the Company within
90 days after Executive incurs such expense. Any
reimbursements of the COBRA premium that are taxable to the
Executive shall be made on or before the last day of the year
following the year in which the COBRA premium was incurred, the
amount of
the COBRA premium eligible for reimbursement
during one year shall not affect the amount of COBRA premium
eligible for reimbursement in any other year, and the right to
reimbursement shall not be subject to liquidation or exchange for
another benefit.
b. No
termination benefits will be paid if Executive resigns or
terminates Executive’s employment for any reason other than
“Good Reason” or the Company terminates
Executive’s employment for “Cause” as determined
by the Chief Executive Officer, the President or the Board or its
designee(s).
c. In
the event Executive’s employment with the Company is
terminated by either party for any reason, Executive shall continue
to be bound by the Company’s Confidentiality,
Non-Solicitation and Covenant Not to Compete Agreement for the
periods set forth therein.
d. Except
as may be provided under this Agreement, any benefits to which
Executive may be entitled pursuant to the plans, policies and
arrangements of the Company shall be determined and paid in
accordance with the terms of such plans, policies and arrangements,
and Executive shall have no right to receive any other compensation
or benefits, or to participate in any other plan or arrangement,
following the termination of Executive’s employment by either
party for any reason.
e. Notwithstanding
anything herein to the contrary, if at the time of
Executive’s termination of employment with the Company,
Executive is a “specified employee” within the meaning
of Code Section 409A and the regulations promulgated thereunder,
then the Company shall delay the commencement of such payments
(without any reduction) by a period of six (6) months after
Executive’s termination of employment. Any
payments that would have been paid during such six (6) month period
but for the provisions of the preceding sentence shall
be
