AMENDED AND RESTATED
EMPLOYMENT SEPARATION AGREEMENT
This Amended and Restated Employment Separation
Agreement (the “Agreement”), effective 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 Peter Tilles, residing
at (the
“Executive”).
WHEREAS, the Company and Executive previously
entered into an Employment Separation Agreement, effective as of
February 1, 2008 (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:
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In connection
with the Executive’s continued employment, the Company shall
employ the Executive as President, Marketing Research and
Consulting of the Company, 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.
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Compensation and Benefits Payable Upon
Involuntary Termination without Cause or Resignation for Good
Reason .
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Triggering Event . In further consideration for
Executive’s continued employment, Executive will receive the
compensation and benefits set forth in this Section 2 if the
following requirements are met:
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Executive’s employment is terminated
involuntarily by the Company at any time for reasons other than
death, total disability or Cause, or Executive resigns from
employment for Good Reason; and
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As of the
30 th
day following his termination date,
Executive has executed the Agreement and General Release in
substantially the form attached to this Agreement, or in such form
as may be provided by the Company (the “Release”), any
applicable revocation period has expired and Executive has not
revoked the Release during such revocation period.
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Compensation and Benefits
. The Company will
provide the following compensation and benefits to
Executive:
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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 (or, if the
Executive was not employed by the Company during the three (3)
immediately preceding years, the average of or actual cash
incentive compensation paid to Executive during the two (2)
preceding years or one (1) preceding year, as
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applicable). Subject to Section 2(c)
below, such payment shall be made within forty-five (45) days of
Executive’s termination date.
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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.
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Delay of
Payment to Comply with Code Section 409A
. 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 and any payments so
deferred shall earn interest calculated at the prime rate of
interest reported by The Wall Street Journal as of the date of
termination. Any payments that would have been paid
during such six (6) month period but for the provisions of the
preceding sentence shall be paid in a lump sum to Executive six (6)
months and one (1) day after Executive’s termination of
employment. The 6-month payment delay requirement of
this Section 2(c) shall apply only to the extent that the payments
under this Section 2 are subject to Code Section
409A. With respect to payments or benefits under this
Agreement that are subject to Code Section 409A, whether Executive
has had a termination of employment shall be determined in
accordance with Code Section 409A and applicable guidance issued
thereunder.
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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.
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Notwithstanding
any provision contained herein to the contrary, in the event of any
termination of employment, the Company shall pay Executive his or
her earned, but unpaid, base salary within ten (10) days of
Executive’s termination date and shall reimburse Executive
for any accrued, but unpaid, reasonable business expenses, in each
case, earned or accrued as of the date of
termination. Executive shall submit documentation of any
business expenses within ninety (90) days of his or her termination
date and any reimbursements of such expenses that are taxable to
the Executive shall be made on or before the last day of the year
following the year in which the expense was incurred, the amount of
the expense eligible
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for
reimbursement during one year shall not affect the amount of
reimbursement in any other year, and the right to reimbursement
shall not be subject to liquidation or exchange for another
benefit.
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Withholding . All amounts otherwise payable under
this Agreement shall be subject to customary withholding and other
employment taxes, and shall be subject to such other withholding as
may be required in accordance with the terms of this Agreement or
applicable law.
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Confidentiality, Non-Solicitation and Covenant
Not to Compete Agreement . In the event Executive’s
employment with the Company is terminated by either party for any
reason, Executi
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