ex10_3.htm


    
      

    

    Exhibit
      10.3

     

    POMEROY
      IT SOLUTIONS, INC.

    
       

      SPECIAL
        CHANGE IN CONTROL BONUS AGREEMENT

       

      This
        SPECIAL CHANGE IN CONTROL BONUS AGREEMENT (this “Agreement”) is made and entered
        into as of this 11th day of December, 2007, by and between Pomeroy IT Solutions,
        Inc., a Delaware corporation (the “Company”), and John McKenzie – SVP of Sales
        Mid Market, Public Sector ad Alliance Sectors, (the “Employee”).

       

      WHEREAS,
        the Company and the Employee have agreed that it is in their respective best
        interests that (i) the ongoing services of the Employee be secured at this
        time;
        and (ii) the Employee fully devote his/her attention to maximizing the value
        of
        the Company and to managing the Company’s participation in any potential “Change
        in Control” relating to the Company.

       

      NOW,
        THEREFORE, for and in consideration of the premises and the mutual covenants
        and
        agreements herein contained, the Company and Employee hereby agree as
        follows:

       

      
        	
              	
                1.

              	
                Definitions.

              


      

       

      
        	
                 

              	
                (a)

              	
                For
                  purposes of this Agreement, “Change In Control”
                  shall mean the first to occur of any of the following
                  events:

              


      

       

      
        	
                 

              	
                (i)

              	
                any
                  “person” (as defined in Section 13(d) and 14(d) of the Securities Exchange
                  Act of 1934, as amended (the “Exchange Act”),
                  excluding for this purpose, (A) the Company or any subsidiary
                  of
                  the Company, or (B) any employee benefit plan of the Company or
                  any
                  subsidiary of the Company, or any person or entity organized, appointed
                  or
                  established by the Company for or pursuant to the terms of any
                  such plan,
                  which acquires beneficial ownership of voting securities of the
                  Company,
                  is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
                  Exchange Act), directly or indirectly of securities of the Company
                  representing more than fifty percent (50%) of the combined voting
                  power of
                  the Company’s then outstanding securities; provided, however, that no
                  Change In Control will be deemed to have occurred as a result of
                  a change
                  in ownership percentage resulting solely from an acquisition of
                  securities
                  by the Company; or

              


      

       

      
        
          
          

        

        
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                (ii)

              	
                persons
                  who, as of the Effective Date constitute the Board (the “Incumbent
                  Directors”) cease for any reason, including
                  without limitation, as a result of a tender offer, proxy contest,
                  merger
                  or similar transaction, to constitute at least a majority thereof,
                  provided that any person becoming a director of the Company subsequent
                  to
                  the Effective Date shall be considered an Incumbent Director if
                  such
                  person’s election or nomination for election was approved by a vote of
                  at
                  least fifty percent (50%) of the Incumbent Directors; but provided
                  further, that any such person whose initial assumption of office
                  is in
                  connection with an actual or threatened election contest relating
                  to the
                  election of members of the Board or other actual or threatened
                  solicitation of proxies or consents by or on behalf of a “person” (as
                  defined in Section 13(d) and 14(d) of the Exchange Act) other than
                  the
                  Board, including by reason of agreement intended to avoid or settle
                  any
                  such actual or threatened contest or solicitation, shall not be
                  considered
                  an Incumbent Director; or

              


      

       

      
        	
                 

              	
                (iii)

              	
                consummation
                  of a reorganization, merger or consolidation or sale or other disposition
                  of at least eighty percent (80%) of the assets of the Company (a
                  “Business Combination”), unless, in each case, following
                  such Business Combination, all or substantially all of the individuals
                  and
                  entities who were the beneficial owners of outstanding voting securities
                  of the Company immediately prior to such Business Combination beneficially
                  own, directly or indirectly, more than fifty percent (50%) of the
                  combined
                  voting power of the then outstanding voting securities entitled
                  to vote
                  generally in the election of directors of the Company resulting
                  from such
                  Business Combination (including, without limitation, a company
                  which, as a
                  result of such transaction, owns the Company or all or substantially
                  all
                  of the Company’s assets either directly or through one or more
                  subsidiaries) in substantially the same proportions as their ownership,
                  immediately prior to such Business Combination, of the outstanding
                  voting
                  securities of the Company; or

              


      

       

      
        	
                 

              	
                (iv)

              	
                approval
                  by the stockholders of the Company of a complete liquidation or
                  dissolution of the Company.

              


      

       

      
        	
                 

              	
                (b)

              	
                “Board”
                  shall mean the Board of Directors of the
                  Company.

              


      

       

      
        	
                 

              	
                (c)

              	
                “Disability”
                  shall have the meaning as set forth in the Employment Agreement
                  by and
                  between Employee and Company dated October 1st,
                  2004, or
                  subsequent replacement there of.

              


      

       

      
        	
                 

              	
                (d)

              	
                “Special
                  Change in Control Bonus Payment” shall mean
                  $225,000.00.

              


      

       

      
        
          
          

        

        
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                (e)

              	
                “Term”
                  shall have the meaning set forth in Section 2
                  below.

              


      

       

      
        	
                 

              	
                2.

              	
                Term
                  of Agreement; Duties.

              


      

       

      
        	
                 

              	
                (a)

              	
                Subject
                  to Section 4 below, this Agreement shall be effective on the date
                  hereof
                  and shall continue in effect through the first to occur of (i)
                  the  occurrence of a Change in Control or (ii) December 31, 2009
                  (the “Term”),  unless extended by the President and Chief
                  Executive Officer and the Compensation Committee of the Board.
                  Upon
                  expiration of the Term, all obligations of the parties under this
                  Agreement (except obligations to pay money that exist as of the
                  end of the
                  Term and any obligation that by its terms survives the expiration
                  of the
                  Term) shall terminate and this Agreement shall have no further
                  effect.

              


      

       

      
        	
                 

              	
                (b)

              	
                The
                  Employee shall have such duties and obligations as are set forth
                  in the
                  Employment Agreement by and between Employee and
                  Company.

              


      

       

      
        	
                 

              	
                3.

              	
                Payment
                  of Special Change in Control Bonus Payment.  Subject to Section
                  4 and Section 14 below, the Company shall pay the Employee the
                  Special
                  Change in Control Bonus Payment within four (4) business days following
                  the occurrence of a Change in
                  Control.

              


      

       

      
        	
                 

              	
                4.

              	
                Termination
                  of Employment and Compensation upon
                  Termination.

              


      

       

      
        	
                 

              	
                (a)

              	
                In
                  the event of termination of the Employee’s employment during the Term due
                  to death,  Disability or by the Company without cause , as
                  defined in the Employment Agreement, Company shall pay to the Employee,
                  or
                  to his or her beneficiary in the event of death or disability,
                  the Special
                  Change in Control Bonus Payment if:

              


      

       

      
        	
                 

              	
                (i)

              	
                a
                  Change in Control occurs within 90 days of the date of such death,
                  Disability or termination of employment without cause;
                  or

              


      

       

      
        	
                 

              	
                (ii)

              	
                a
                  definitive agreement relating to a Change in Control has been executed
                  at
                  the effective date of such termination, and such agreement is subsequently
                  consummated by the parties; or

              


      

       

      
        
          
          

        

        
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                (iii)

              	
                a
                  definitive agreement relating to a Change in Control is subsequently
                  executed with a party with whom the Company has had substantive
                  negotiations regarding a Change in Control prior to the effective
                  date of
                  such termination, or with an affiliate of such party, and such
                  negotiations have not been interrupted for a material period of
                  time (90
                  days or more) prior to the date of a Change in Control, and such
                  agreement
                  is subsequently consummated by the parties.    For
                  purposes of this Section 4(a), the effective date of termination
                  of the
                  Employee’s employment with the Company shall be determined under his/her
                  Employment Agreement..

              


      

       

      
        	
                 

              	
                (b)

              	
                In
                  the event of a termination of the Employee’s employment during the Term
                  for any other reason, the Company shall have no obligation to pay
                  the
                  Employee any Special Change in Control Bonus
                  Payment.

              


      

       

      
        	
                 

              	
                (c)

              	
                If
                  the Employee’s employment by the Company is not terminated prior to the
                  expiration of the Term, then if a definitive agreement relating
                  to a
                  Change in Control has been executed prior to the expiration of
                  the Term or
                  if a definitive agreement relating to a Change in Control is subsequently
                  executed with a party with whom the Company has had substantive
                  negotiations regarding a Change in Control prior to the expiration
                  of the
                  Term, or with an affiliate of such party, and such negotiations
                  have not
                  been interrupted for a material period of time (90 days or more)
                  prior to
                  the date of execution of such definitive agreement, the Employee
                  shall be
                  entitled to the Special Change in Control Bonus Payment if the
                  transaction
                  contemplated by that definitive agreement is consummated after
                  the
                  expiration of the Term and Employee is employed by the Company
                  at such
                  time.

              


      

       

      
        	
                 

              	
                5.

              	
                Withholding
                  Taxes.  The Company shall withhold from any payment due to the
                  Employee hereunder (or his/her beneficiary or estate)  all taxes
                  which, by applicable federal, state, local or other law, the Company
                  is
                  required to withhold therefrom.

              


      

       

      
        	
                 

              	
                6.

              	
                Confidentiality.  The
                  Employee agrees that the terms of the Agreement, and all discussions
                  relating to this Agreement, are and shall remain confidential as
                  between
                  the parties, unless and to the extent, disclosure as required by
                  law or to
                  secure advice from a legal or tax
                  advisor.

              


      

       

      
        
          
          

        

        
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                7.

              	
                Successors
                  and Assigns: No Third-Party Beneficiaries.  This Agreement shall
                  inure to the benefit of and shall be binding upon the Company and
                  its
                  successors, assigns and legal representatives and the Employee,
                  his/her
                  heirs and legal representatives.  The Employee may not assign,
                  transfer, or otherwise dispose of the Agreement, or any of his/her
                  rights
                  or obligations hereunder other than his/her rights to payments
                  hereunder,
                  which may be transferred only by will or by the laws of descent
                  and
                  distribution), without the prior written consent of the Company,
                  and any
                  such attempted assignment, transfer or other disposition without
                  such
                  consent shall be null and void.  The Company shall be entitled
                  to assign this Agreement, without the prior written consent of
                  the
                  Employee, (i) in connection with the merger or consolidation of
                  the
                  Company with another unaffiliated corporation, or (ii) in connection
                  with
                  the sale of all or substantially all of the assets or business
                  operations
                  of the Company to another person or entity; provided, however,
                  that such
                  assignee expressly assumes all of the rights and obligations of
                  the
                  Company hereunder, and provided further that solely with respect
                  to any
                  obligations of the Company to make a Special Change in Control
                  Bonus
                  Payment, the Company shall remain liable with respect to such obligation
                  in the event of a default by such assignee.  After any such
                  assignment, the Agreement shall continue in full force and
                  effect.

              


      

       

      
        	
                 

              	
                8.

              	
                Entire
                  Agreement.  This Agreement sets forth the entire agreement
                  between the parties hereto with respect to the subject matter hereof,
                  and
                  supersedes all other agreements and understandings, written or
                  oral,
                  between the parties hereto with respect to the subject matter hereof;
                  provided, however, nothing in the Agreement is intended to affect
                  the
                  Employee’s rights to payments or benefits provided to the Employee under
                  his/her Employment Agreement and the Company’s equity based compensation
                  and/or welfare benefit plans.

              


      

       

      
        	
                 

              	
                9.

              	
                Waiver
                  and Amendments.  Any waiver, alteration, amendment or
                  modification of any of the terms of this Agreement shall be valid
                  only if
                  made in writing and signed by the parties hereto; provided however,
                  that
                  any such waiver, alteration, amendment or modification is consented
                  to on
                  the Company’s behalf by the President and Chief Executive Officer or the
                  Board.   No waiver by either of the parties hereto of their
                  rights hereunder shall be deemed to constitute a waiver with respect
                  to
                  any subsequent occurrences or transactions hereunder unless such
                  waiver
                  specifically states that it is to be construed as a continuing
                  waiver.

              


      

       

      
        
          
          

        

        
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                10.

              	
                Severability.
                  If any provision of this Agreement or the application of any provision
                  is
                  held invalid, unenforceable or otherwise illegal, the remainder
                  of this
                  Agreement and the application of such provision will not be affected,
                  and
                  the provision so held to be invalid, unenforceable or otherwise
                  illegal
                  will be reformed to the extent (and only to the extent) necessary
                  to make
                  it enforceable, valid or legal. To the extent any provisions held
                  to be
                  invalid, unenforceable or otherwise illegal cannot be reformed,
                  such
                  provisions are to be stricken herefrom and the remainder of this
                  Agreement
                  will be binding on the parties and their successors and assigns
                  as if such
                  invalid or illegal provisions were never included in this Agreement
                  from
                  the first instance.

              


      

       

      
        	
                 

              	
                11.

              	
                Governing
                  Law. This Agreement will be construed and enforced according to
                  the laws
                  of the Commonwealth of Kentucky, without giving effect to the conflict
                  of
                  laws principles thereof.

              


      

       

      
        	
                 

              	
                12.

              	
                Section
                  Headings.  The headings of the sections and subsections of this
                  Agreement are inserted for convenience only and shall be deemed
                  to
                  constitute a part hereof, affect the meaning or interpretation
                  hereof or
                  of any term or provision hereof.

              


      

       

      
        	
                 

              	
                13.

              	
                Obligations
                  Contingent on Performance.  The obligations of the Company
                  hereunder, including its obligation to make the payments provided
                  for
                  herein, are contingent upon the Employee’s performance of the Employee’s
                  obligations under his/her Employment
                  Agreement.

              


      

       

      
        	
                 

              	
                14.

              	
                Waiver
                  and Release.  The Employee acknowledges and agrees that any
                  payment made under this Agreement is contingent upon Employee delivering
                  to the Company at the time of such Change In Control a release
                  in the form
                  attached hereto as Exhibit A, and the expiration of all revocation
                  periods
                  related thereto.

              


      

       

      
        	
                 

              	
                15.

              	
                Counterparts.  This
                  Agreement may be executed in two or more counterparts, each of
                  which shall
                  be deemed to be an original but all of which together shall constitute
                  one
                  and the same instrument.  The execution of this Agreement may be
                  by actual or facsimile signature.

              


      

       

      
        	
                 

              	
                16.

              	
                Notices.  All
                  notices and other communications hereunder shall be in writing
                  and shall
                  be given by hand delivery to the other party or by registered or
                  certified
                  mail, return receipt requested, postage prepaid, addressed as
                  follows:

              


      


      
        
          
          

        

        
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                If
                  to the Employee:

              	
                John
                  McKenzie

              


      

      901
        Caitlin Drive.

      Union,
        Kentucky  41091

      
 

      
        	
                If
                  to the Company:

              	
                Pomeroy
                  IT Solutions, Inc.

              


      

      1020
        Petersburg Road

      Hebron,
        Kentucky  41048

      Attention:  President
        and Chief Executive Officer

       

      


      
        	
                With
                  copy to:

              	
                Pomeroy
                  IT Solutions, Inc.

              


      

      1020
        Petersburg Road

      Hebron,
        Kentucky 41048

      Attention:  General
        Counsel

      


       

      IN
        WITNESS WHEREOF, the undersigned have executed this Agreement of the date
        first
        written above.

       

      
        	
                Pomeroy
                  IT Solutions, Inc.

              	 	 	
                Employee 

              	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	
                By:

              	
                Keith
                  R. Coogan

              	 	 	
                By:

              	
                John
                  McKenzie

              	 
	
                Title:

              	
                President/Chief
                  Executive Officer

              	 	 	
                Title:

              	
                SVP
                  of Sales Mid Market, Public Sector & Alliance Sectors

              	 


      

       

       

    

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