Exhibit
10.21
AGREEMENT
AND GENERAL RELEASE
PDI,
Inc.
(referred to throughout this Agreement as “Employer”), and Larry Ellberger
(referred to throughout this Agreement as “Employee”), agree that:
1. Last
Day of Employment.
Employee's last day of employment with Employer is August 4, 2006.
a. Consideration.
In
consideration for signing this Agreement and compliance with the promises made
herein, Employer agrees to pay to Employee $125,000.00, less lawful deductions,
to be paid in a lump sum payment on the six month anniversary of the Effective
Date of this Agreement (discussed below in paragraph “3” below) and Employee’s
fulfillment of the promises contained herein, or such later date as required
to
conform with Internal Revenue Code Section 409(A), if applicable.
2. No
Consideration Absent Execution of this Agreement.
Employee
understands and agrees that Employee would not receive the monies and/or
benefits specified in paragraph “1(a)” above, except for Employee’s execution of
this Agreement and the fulfillment of the promises contained herein.
3. Revocation.
Employee
may revoke this Agreement for a period of seven (7) calendar days following
the
day Employee executes this Agreement. Any revocation within this period must
be
submitted, in writing, to Nancy McCarthy, Executive Vice President of Human
Resources and state, "I hereby revoke my acceptance of our Agreement and General
Release." The revocation must be personally delivered to Nancy McCarthy,
Executive Vice President of Human Resources or Employer’s designee, or mailed to
Nancy McCarthy, Executive Vice President of Human Resources at PDI, Inc., Saddle
River Executive Centre, One Route 17 South, Saddle River, New Jersey, 07458
and
postmarked within seven (7) calendar days of execution of this Agreement. This
Agreement shall not become effective or enforceable until the revocation period
has expired (hereinafter “the Effective Date”). If the last day of the
revocation period is a Saturday, Sunday, or legal holiday in New Jersey, then
the revocation period shall not expire until the next following day which is
not
a Saturday, Sunday, or legal holiday in New Jersey.
4. General
Release of Claim.
Employee, Employee’s heirs, executors, administrators, fiduciaries, successors
and/or assigns, knowingly and voluntarily release and forever give up, to the
full extent permitted by law, Employer, Employer's past, present and future
direct or indirect parent organizations, subsidiaries, divisions, affiliated
entities, and its and their partners, officers, directors, trustees,
administrators, fiduciaries, employment benefit plans and/or pension plans
or
funds, executors, attorneys, employees, insurers, reinsurers and/or agents
and
their successors and assigns individually and in their official capacities
(collectively referred to herein as “Released Parties” or “Released Party”),
jointly and severally, of and from all claims, known or unknown, that Employee
has or may have against Released Parties as of the date of execution of this
Agreement, including, but not limited to, any alleged violation of:
●The
National Labor Relations Act;
● Title
VII
of the Civil Rights Act;
● Civil
Rights Act of 1991
● Sections
1981 through 1988 of Title 42 of the United States Code;
● The
Employee Retirement Income Security Act;
● The
Fair
Credit Reporting Act;
● The
Immigration Reform Control Act;
● The
Americans with Disabilities Act;
● The
Rehabilitation Act;
● The
Age
Discrimination in Employment Act;
● The
Occupational Safety and Health Act;
● The
Family and Medical Leave Act;
● The
Equal
Pay Act;
● The
Fair
Labor Standards Act;
●
The
Uniformed Services Employment and Reemployment Rights Act;
● Worker
Adjustment and Retraining Notification Act;
● Employee
Polygraph Protection Act;
● The
New
Jersey Law Against Discrimination;
● The
New
Jersey Civil Rights Act;
● The
New
Jersey Family Leave Act;
● The
New
Jersey State Wage and Hour Law;
● The
New
Jersey Conscientious Employee Protection Act;
● The
New
Jersey Equal Pay Law;
● The
New
Jersey Occupational Safety and Health Law;
● The
New
Jersey Smokers’ Rights Law;
● The
New
Jersey Genetic Privacy Act;
● The
New
Jersey Fair Credit Reporting Act;
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The
New Jersey Statutory Provision Regarding Retaliation/Discrimination
for
Filing A Workers' Compensation
Claim;
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The
New Jersey Public Employees' Occupational Safety and Health
Act;
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New
Jersey laws regarding Political Activities of Employees, Lie Detector
Tests, Jury Duty, Employment Protection, and
Discrimination;
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any
other federal, state or local civil rights law, whistle-blower or
any
other local, state or federal law, regulation or
ordinance;
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any
public policy, contract (oral, written or implied), tort, constitution
or
common law;
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any
claims for vacation, sick or personal leave pay, short term or long
term
disability benefits, or payment pursuant to any practice, policy,
handbook
or manual; or
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any
basis for costs, fees, or other expenses including attorneys’ fees.
Employee
understands this Release includes all claims related in any manner to Employee’s
employment or the cessation of that employment. Employee further understands
that Employee is hereby releasing any known or unknown claim for alleged right
to discovery of information or documents of Released Parties. Notwithstanding
the foregoing, nothing herein shall affect the Employee’s right to coverage, if
such coverage is otherwise available, under the Employer’s Directors’ and
Officers’ insurance policies (to the extent that such policies are then in
effect).
5. Affirmations.
Employee
affirms that Employee is not a party to, and that Employee has not filed or
caused to be filed, any claim, complaint, charge or action against Released
Parties in any forum or form. Employee further affirms that Employee has been
paid and/or has received all leave (paid or unpaid), compensation, wages,
bonuses, commissions, and/or benefits to which Employee may be entitled and
that
no other leave (paid or unpaid), compensation, wages, bonuses, commissions
and/or benefits are due to Employee, except as provided in this Agreement.
Employee furthermore affirms that Employee has no known workplace injuries
or
occupational diseases and has been provided and/or has not been denied any
leave
requested under the Family and Medical Leave Act and/or any other federal,
state
or local leave law, including the New Jersey Family Leave Act. Employee further
affirms Employee
has not complained of and is not aware of any fraudulent activity or any act(s)
which would form the basis of a claim of fraudulent or illegal activity of
Employer.
6. Confidentiality.
To the
extent permitted by law, Employee agrees not to disclose any information
regarding the existence or substance of this Agreement, except to Employee’s
spouse, tax advisor, or an attorney with whom Employee chooses to consult
regarding Employee’s consideration of this Agreement, each of whom shall
likewise agree to keep the information confidential. In the event Employee
or
Employee’s counsel believe either is compelled to provide or disclose
information described in this paragraph, they will provide written notice of
such belief, via facsimile and mail, to Nancy McCarthy, Executive Vice President
of Human Resources, PDI, Inc., Saddle River Executive Centre, One Route 17
South, Saddle River, New Jersey, 07458. Fax number - (201) 258-8445, no later
than seven (7) business days prior to said production or disclosure. This
Agreement shall not be filed with any court and shall remain forever
confidential except in an action to enforce or for breach of this Agreement.
If
Employee asserts an action to enforce this Agreement or for breach of this
Agreement, Employee shall maintain such confidentiality by whatever means
necessary, including, but not limited to, submitting the Agreement to a court
under confidential seal.
7. Governing
Law and Interpretation.
This
Agreement shall be governed and conformed in accordance with the laws of the
State of New Jersey without regard to its conflict of laws provisions. In the
event Employee or Employer breaches any provision of this Agreement, Employee
and Employer affirm that either may institute an action against the other to
specifically enforce any term or terms of this Agreement, in addition to any
other legal or equitable relief permitted by law. In the event that any
provision of this Agreement is declared illegal or unenforceable by a court
of
competent jurisdiction and cannot be modified to be enforceable, excluding
the
general release language, such provision shall immediately become null and
void,
leaving the remainder of this Agreement in full force and effect. Moreover,
if
any such provision determined to be invalid, illegal or unenforceable and can
be
made valid, legal or enforceable by modification thereof, then the party for
whose benefit the provision exists, may make such modification as necessary
to
make the provision valid, legal and enforceable.
8. Non
Disparagement. Employee
agrees not to defame, disparage or demean Employer in any manner whatsoever.
Employer agrees, on behalf of its Executive Officers (defined herein as any
officer of Employer whose title is Executive Vice President or higher) and
its
directors, not to defame, disparage or demean Employee in any manner
whatsoever.
9. Cooperation.
Subject
to Employee’s other personal and professional obligations and on reasonable
notice and at reasonable times, Employee will, without further consideration,
cooperate with Employer and its counsel in connection with any investigation,
administrative or regulatory proceeding or litigation relating to any matter
in
which Employee was involved or of which Employee has knowledge as a result
of
Employee’s employment with Employer and/or any Released Party or Released
Parties. Further, Employee shall, without further consideration, provide
Employer with such transitional services and assistance as may be reasonably
requested by the Chief Executive Officer of Employer.
10. Return
of Property.
Employee
agrees, within seven (7) calendar days from the date of this Agreement, to
return any and all property, including all copies or duplicates thereof,
belonging to Released Parties, including, but not limited to, PDI owned or
leased automobile, computer equipment, keys, security cards, equipment,
documents, supplies, customer lists and customer information, confidential
documents, etc. With the return of Released Parties' materials, Employee shall
submit a letter (or an e-mail) to Nancy McCarthy at PDI, Inc., Saddle River
Executive Centre, One Route 17 South, Saddle River, New Jersey, 07458, affirming
that Employee has returned all property and copies and has not retained any
property belonging to Released Parties.
11.
Nonadmission of Wrongdoing.
Employee
agrees that neither this Agreement nor the furnishing of the consideration
for
this Agreement shall be deemed or construed at anytime for any purpose as an
admission by Employer of any liability or unlawful conduct of any
kind.
12. Amendment.
This
Agreement may not be modified, altered or changed except upon express written
consent of both parties wherein specific reference is made to this
Agreement.
13. Entire
Agreement.
This
Agreement sets forth the entire agreement between the Employee and Released
Parties hereto, and fully supersedes any prior or contemporaneous agreements
or
understandings between Employee and Released Parties; provided, however, that
(a) this Agreement does not supercede or affect any confidentiality,
non-disclosure, non-compete, invention, assignment of proprietary rights or
non-solicitation agreement(s) signed by Employee, which shall remain in full
force and effect as provided for therein and Employee expressly acknowledges
Employee's intent to adhere to the promises contained in those agreements,
and
(b) the stock option agreements covering the options previously issued to
Employee as a result of his service on Employer’s Board of Directors, which
shall fully vest upon the Effective Date of this Agreement and shall remain
exercisable for three (3) years following the Effective Date of this Agreement.
Employee also acknowledges that Employee has not relied on any representation,
promises, or agreements of any kind made in connection with the decision to
sign
this Agreement, except for those set forth in this Agreement.
EMPLOYEE
IS HEREBY ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO
REVIEW THIS AGREEMENT AND GENERAL RELEASE AND IS HEREBY ADVISED TO CONSULT
WITH
AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT AND GENERAL RELEASE.
EMPLOYEE
IS ADVISED THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT
AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL
TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
HAVING
ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES
AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH "1" ABOVE, EMPLOYEE FREELY
AND
KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL
RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT
HAVE AGAINST RELEASED PARTIES AS OF THE DATE OF THE EXECUTION OF THIS
AGREEMENT.
IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement and General Release as of the date set forth below:
/s/
Larry Ellberger
Larry
Ellberger
Dated:
July 31, 2006
PDI,
INC.
By:
/s/
Nancy McCarthy
Nancy
McCarthy
Executive
Vice President of Human
Resources
Dated:
July 31, 2006