Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this "Agreement") is made as of the 5th day
of
January 2004, by and among PDI, INC., a
Delaware corporation (the "Company"),
having its principal place of business at
10 Mountainview Road, Suite C200,
Upper Saddle River, New Jersey 07458, on
the one hand, and ALAN L. RUBINO,
residing at 210 Old Chester Road, Essex
Fells, NJ 07021 (the "Executive"), on
the other.
W I T N E S S E T H
WHEREAS,
the Company believes that it would benefit from the application
of the Executive's particular and unique
skills, experiences and background in
connection with the management and
operation of the Company, and wishes to
employ the Executive as Executive Vice
President and General Manager, Sales
Teams Business; and
WHEREAS,
the parties desire by this Agreement to set forth the terms and
conditions of the employment relationship
between the Company and the Executive.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants
in this Agreement, the Company and the
Executive agree as follows:
1.
Employment and Duties. The Company hereby employs the Executive
as
Executive Vice President and General
Manager, Sales Teams Business on the terms
and conditions provided in this Agreement
and Executive agrees to accept such
employment subject to the terms and
conditions of this Agreement. The Executive
shall be responsible for management of the
day-to-day affairs of the Company's
Sales Teams Business, shall perform the
duties and responsibilities as are
customary for the officer of a corporation
in such positions, and shall perform
such other duties and responsibilities as
are reasonably determined from time to
time by the President of Global Sales and
Marketing Services Group of the
Company. The Executive shall report to and
be supervised by the Company's
President of Global Sales and Marketing
Services Group. The Executive shall be
based at the Company's offices in Upper
Saddle River, New Jersey, or such other
place that shall constitute the Company's
headquarters. The Executive agrees to
devote substantially all his attention and
time during normal business hours to
the business and affairs of the Company and
to use his reasonable best efforts
to perform faithfully and efficiently the
duties and responsibilities of his
positions and to accomplish the goals
and
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objectives of the Company as may be
established from time to time by the
Company's Board of Directors (the "Board").
Notwithstanding the foregoing, the
Executive may engage in the following
activities (and shall be entitled to
retain all economic benefits thereof
including fees paid in connection
therewith) as long as they do not interfere
in any material respect with the
performance of the Executive's duties and
responsibilities hereunder and, with
respect to subsections (i) and (ii) below,
that such activity is pre-approved by
the Company's President of Global Sales and
Marketing Services Group: (i) serve
on corporate, civic, religious, educational
and/or charitable boards or
committees, provided that the Executive
shall not serve on any board or
committee of any corporation or other
business which competes with the Business
(as defined in Section 10(a) below); (ii)
deliver lectures, fulfill speaking
engagements or teach on a part-time basis
at educational institutions; and (iii)
make investments in businesses or
enterprises and manage his personal
investments; provided that with respect to
such activities, Executive shall
comply with all applicable laws and any
business conduct and ethics policy
applicable to employees of the Company.
2. Term.
The term of this Agreement shall commence on January 5, 2004
(the
"Commencement Date"), and shall terminate
on January 5, 2006, unless extended or
earlier terminated in accordance with the
terms of this Agreement (the
"Termination Date"). Such term of
employment is herein sometimes referred to
herein as the "Employment Term". The
Employment Term shall be extended for
successive one year periods unless either
party notifies the other in writing at
least 90 days before the Termination Date,
or any anniversary of the Termination
Date, as the case may be, that he or it
chooses not to extend the Employment
Term. If the Company chooses not to extend
the Employment Term, the Executive
shall be paid an amount equal to the
product of twelve (12) times the Monthly
Salary Amount (as defined below), the
continuation of his car allowance and
medical benefits for the 12 months
following the end of the term of the
Agreement, contingent upon receipt by the
Company of a signed Agreement and
Release by the Executive.
3.
Compensation. As compensation for performing the services required
by
this Agreement, and during the Employment
Term, the Executive shall be
compensated as follows:
(a) Base Compensation. The Company shall pay to the Executive
an
annual salary ("Base Compensation") of
$230,000, payable in equal installments
pursuant to the
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Company's customary payroll procedures in
effect for its executive personnel at
the time of payment, but in no event less
frequently than monthly, subject to
withholding for applicable federal, state
and local income and employment
related taxes. The Executive may be
entitled to such increases in Base
Compensation with respect to each calendar
year during the Employment Term, as
shall be determined by the Compensation
Committee of the Board (the
"Committee"), in its sole and absolute
discretion, based on an annual review of
the Executive's performance.
(b) Incentive Compensation. In addition to Base Compensation,
the
Executive may be entitled to receive
additional compensation ("Incentive
Compensation") in the discretion of the
Committee. The Incentive Compensation
shall be pursuant to short-term and/or
long-term incentive compensation programs
which currently exist or may be established
by the Company. For purposes of this
Agreement, the Executive's "Pro Rata Share"
of Incentive Compensation for any
calendar year shall be a fraction whose
numerator shall be equal to the number
of months (or parts of months) during which
the Executive was actually employed
by the Company during any such calendar
year and whose denominator shall be the
total number of months in such calendar
year. The current ICP program is set at
0-125% of base salary with a 100% target.
These targets are subject to change at
the discretion of the Compensation
Committee of the Board of Directors.
(c) Sign-On Bonus. In addition to Base Compensation, the
Company
shall pay to the Executive within the first
thirty days following the
Commencement Date the sum of $20,000,
subject to withholding for applicable
federal, state and local income and
employment related taxes.
(d) Sign-On Stock Option. The Executive will be granted an option
to
purchase 10,000 shares of the Company's
common stock upon approval by the
Committee within the first thirty days
following the Commencement Date. The
price of option will be determined by the
closing market price of the Company's
common stock on the day the Executive's
employment begins with the Company. The
option will vest in one-third increments
over three years.
(e) Financial Planning Program. The executive is eligible for
the
Company's Financial Planning Program
(AYCO).
4.
Employee Benefits. During the Employment Term and subject to
the
limitations set forth in this Section 4,
the Executive and his eligible
dependents shall have the right to
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participate in any retirement plans
(qualified and non-qualified), pension,
insurance, health, disability or other
benefit plan or program that has been or
is hereafter adopted by the Company (or in
which the Company participates),
according to the terms of such plan or
program, on terms no less favorable than
the most favorable terms granted to senior
executives of the Company.
5.
Vacation and Leaves of Absence. The Executive shall be entitled to
the
normal and customary amount of paid
vacation provided to senior executive
officers of the Company, but in no event
less than 20 days during each 12 month
period, beginning on the Commencement Date
of this Agreement. Any vacation days
that are not taken in a given 12 month
period shall not accrue or carry-over
from year to year. Upon any termination of
this Agreement for any reason
whatsoever, accrued and unused vacation for
the year in which this Agreement
terminates will be paid to the Executive
within 10 days of such termination
based on his annual rate of Base
Compensation in effect on the date of such
termination. In addition, the Executive may
be granted leaves of absence with or
without pay for such valid and legitimate
reasons as the Company in its sole and
absolute discretion may determine, and the
Executive shall be entitled to the
same sick leave and holidays provided to
other senior executives of the Company.
6.
Expenses.
(a) Business Expenses. The Executive shall be promptly
reimbursed
against presentation of vouchers or
receipts for all reasonable and necessary
expenses incurred by him in connection with
the performance of his duties
hereunder.
(b) Automobile Expense. During the Employment Term, in order to
facilitate the performance of the
Executive's duties hereunder, and otherwise
for the convenience of the Company, the
Company (a) (i) shall reimburse the
Executive for the cost of leasing an
automobile consistent with the Executive
Vice President car benefit described in the
Company's Car Benefit Program as of
December 2002 or (ii) shall pay the
Executive $850.00 per month and (b) shall
pay or reimburse Executive (upon
presentation of vouchers or receipts) for the
reasonable cost of all maintenance,
insurance, repairs and other reasonable
expenses related to such automobile (the
"Automobile Benefit"). The Executive
hereby agrees that a new lease for an
automobile will not be executed until the
Executive's existing lease term has
expired.
7.
Indemnification.
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(a) General. The Company agrees that if the Executive is made a
party or is threatened to be made a party
to any action, suit or proceeding,
whether civil, criminal, administrative or
investigative (a "Proceeding"), by
reason of the fact that she is or was a
director or officer of the Company, is
or was serving at the request of the
Company as a director, officer, member,
employee or agent of another corporation or
of a partnership, joint venture,
trust or other enterprise, including,
without limitation, service with respect
to employee benefit plans, whether or not
the basis of such Proceeding is
alleged action in an official capacity as a
director, officer, member, employee
or agent while serving as a director,
officer, member, employee or agent, the
Executive shall be indemnified and held
harmless by the Company to the fullest
extent authorized by applicable law (in
accordance with the certificate of
incorporation and/or bylaws of the
Company), as the same exists or may hereafter
be amended, against all Expenses (as
defined below) incurred or suffered by the
Executive in connection therewith, and such
indemnification shall continue as to
the Executive even if the Executive has
ceased to be an officer, director or
agent, or is no longer employed by the
Company and shall inure to the benefit of
his heirs, executors and
administrators.
(b) Expenses. As used in this Agreement, the term "Expenses"
shall
include, without limitation, damages,
losses, judgments, liabilities, fines,
penalties, excise taxes, settlements and
costs, attorneys' fees, accountants'
fees, and disbursements and costs of
attachment or similar bonds,
investigations, and any expenses of
establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement is
not
paid by the Company, or on its behalf,
within fifteen days after a written claim
or request has been received by the
Company, the Executive may at any time
thereafter bring suit against the Company
to recover the unpaid amount of the
claim or request and if successful in whole
or in part, the Executive shall be
entitled to be paid also the expenses of
prosecuting such suit. The burden of
proving that the Executive is not entitled
to indemnification for any reason
shall be upon the Company.
(d) Subrogation. In the event of payment under this Agreement,
the
Company shall be subrogated to the extent
of such payment to all of the rights
of recovery of the Executive.
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(e) Partial Indemnification. If the Executive is entitled under
any
provision of this Agreement to
indemnification by the Company for some or a
portion of any Expenses, but not, however,
for the total amount thereof, the
Company shall nevertheless indemnify the
Executive for the portion of such
Expenses to which the Executive is
entitled.
(f) Advances of Expenses. Expenses incurred by the Executive in
connection with any Proceeding shall be
paid by the Company in advance upon
request of the Executive that the Company
pay such Expenses.
(g) Notice of Claim. The Executive shall give to the Company
notice
of any claim made against him for which
indemnity will or could be sought under
this Agreement. In addition, the Executive
shall give the Company such
information and cooperation as it may
reasonably require and as shall be within
the Executive's power and at such times and
places as are reasonable for the
Executive.
(h) Defense of Claim. With respect to any Proceeding as to which
the
Executive notifies the Company of the
commencement thereof: (i) the Company will
be entitled to participate therein at its
own expense; and (ii) except as
otherwise provided below, to the extent
that it may wish, the Company jointly
with any other indemnifying party similarly
notified will be entitled to assume
the defense thereof, with counsel
reasonably satisfactory to the Executive. The
Company shall not be entitled to assume the
defense of any action, suit or
proceeding brought by or on behalf of the
Company or as to which the Executive
shall have reasonably concluded that there
may be a conflict of interest between
the Company and the Executive in the
conduct of the defense of such action.
The Company shall not be liable to indemnify the Executive
under this Agreement for any amounts paid
in settlement of any action or claim
effected without its written consent. The
Company shall not settle any action or
claim in any manner which would impose any
penalty or limitation on the
Executive without Executive's written
consent. Neither the Company nor the
Executive shall unreasonably withhold or
delay their consent to any proposed
settlement.
(i) Non-exclusivity. The right to indemnification and the payment
of
expenses incurred in defending a Proceeding
in advance of its final disposition
conferred in this Section 7 shall not be
exclusive of any other right which the
Executive may have or hereafter may
acquire
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under any statute, provision of the
certificate of incorporation or bylaws of
the Company, agreement, vote of
stockholders or disinterested directors or
otherwise.
(j) Directors and Officers Liability Policy. The Company agrees
to
use reasonable efforts to maintain
directors and officers liability insurance
covering the Executive in a reasonable and
adequate amount determined by the
Company.
8.
Termination and Termination Benefits.
(a) Termination by the Company.
(i) For Cause. Notwithstanding any provision contained herein,
the Company may terminate this Agreement at
any time during the Employment Term
for "Cause". For purposes of this
subsection 8(a)(i), "Cause" shall mean (1) the
continuing failure by the Executive to
perform his duties hereunder for any
reason other than total or partial
incapacity due to physical or mental illness,
or (2) gross negligence or gross
malfeasance on the part of the Executive in the
performance of his duties hereunder that
causes material harm to the Company.
Termination pursuant to this subsection
8(a)(i) shall be effective immediately
upon giving the Executive written notice
thereof stating the reason or reasons
therefor with respect to clause (2) above,
and 15 days after written notice
thereof from the Company to the Executive
specifying the acts or omissions
constituting the failure and requesting
that they be remedied with respect to
clause (1) above, but only if the Executive
has not cured such failure within
such 15 day period. In the event of a
termination pursuant to this subsection
8(a)(i), the Executive shall be entitled to
payment of his Base Compensation and
the benefits pursuant to Section 4 hereof
up to the effective date of such
termination and it is also the intention
and agreement of the Company that
Executive shall not be deprived by reason
of termination for Cause of any
payments, options or benefits which have
been vested or have been earned or to
which Executive is entitled as of the
effective date of such termination.
(ii) Disability. If due to illness, physical or mental
disability, or other incapacity, the
Executive shall fail, for a total of any
six consecutive months ("Disability"), to
substantially perform the principal
duties required by this Agreement, the
Company may terminate this Agreement upon
30 days' written notice to the Executive.
In such event, the Executive shall be
(1) paid his Base Compensation until the
Termination Date and his Pro Rata Share
of any Incentive Compensation to which she
would have been entitled for the year
in which such
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termination occurs, and (2) provided with
employee benefits pursuant to Section
4, to the extent available, for the
remainder of the Employment Term; provided,
however, that any compensation to be paid
to the Executive pursuant to this
subsection 8(a)(ii) shall be offset against
any payments received by the
Executive pursuant to any policy of
disability insurance the premiums of which
are paid for by the Company.
(b) Termination Without Cause or Termination For Good Reason.
The
Company may terminate the Executive's
employment hereunder without Cause and the
Executive may terminate his employment
hereunder for "Good Reason" (as defined
below). If the Company terminates the
Executive's employment hereunder without
Cause, other than due to death or
Disability, or if the Executive terminates his
employment for Good Reason, the Executive
shall be paid (contingent upon receipt
by the Company of a signed Agreement and
General Release by the Executive): (i)
his Base Compensation at the rate in effect
at the time of termination through
the Termination Date; (ii) his Pro Rata
Share of any Incentive Compensation to
which she would have been entitled for the
year in which such termination
occurs; (iii) a lump sum payment equal to
the product of twelve (12) times the
"Monthly Salary Amount"; (iv) any vested
deferred compensation (including,
without limitation, interest or other
credits on the deferred amounts) and any
accrued vacation pay; (v) continuation,
until the expiration of the Employment
Term and for twelve months thereafter, of
the health and welfare benefits of the
Executive and any long-term disability
insurance generally provided to senior
executives of the Company (as provided for
by Section 4 of this Agreement) (or
the Company shall provide the economic
equivalent thereof); provided, however,
if the Executive obtains new employment and
such employment makes the Executive
eligible for health and welfare or
long-term disability benefits which are equal
to or greater in scope then the benefits
then being offered by the Company, then
the Company shall no longer be required to
provide such benefits to the
Executive; (vi) continuation, until the
expiration of the Employment Term and
for twelve months thereafter, of the
Automobile Benefit; and (vii) any other
compensation and benefits as may be
provided in accordance with the terms and
provisions of any applicable plans or
programs of the Company; provided,
however, if the Executive terminates his
employment for Good Reason pursuant to
subsection (e) thereof (reasons relating to
a Change of Control), the Executive
shall be entitled to a lump sum payment
equal to the product of thirty-six (36)
times the "Monthly Salary Amount".
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As used
herein, "Monthly Salary Amount" shall mean an amount equal
to one-twelfth of the sum of (y) the
Executive's then current annual Base Salary
plus (z) the average cash incentive
compensation paid to the Executive each year
during the three years immediately
preceding the termination date.
As used herein, "Good Reason" means and shall be deemed to exist
if,
without the prior express written consent
of the Executive, (a) the Company
breaches this Agreement in any material
respect; (b) the Company fails to obtain
the full assumption of this Agreement by a
successor; (c) the Company fails to
use its reasonable best efforts to
maintain, or cause to be maintained directors
and officers liability insurance coverage
for the Executive; (d) the Company
purports to terminate the Executive's
employment for Cause and such purported
termination of employment is not effected
in accordan
