Unassociated Document


    POMEROY
IT SOLUTIONS, INC.

     

    AMENDED
AND RESTATED

    SPECIAL
CHANGE IN CONTROL BONUS AGREEMENT

     

    This
AMENDED AND RESTATED SPECIAL CHANGE IN CONTROL BONUS AGREEMENT (this “Agreement”) is made and
entered into as of this 18th day of May, 2009, by and between Pomeroy IT
Solutions, Inc., a Delaware corporation (the “Company”), and
_______________________________, (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;

     

    WHEREAS,
the Company and the Employee are parties to that certain Special Change in
Control Bonus Agreement, dated as of _______________ (the “Prior Agreement”);
and

     

    WHEREAS,
the Company and the Employee wish to amend and restate the Prior
Agreement.

     

    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

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (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 the Company dated ________________, or subsequent replacement
      thereof.

            


    

     

    


     

    
      	
               
      

            	
              (d)

            	
              “Special Change in Control Bonus
      Payment” shall mean
$__________.

            


    

     

    


     

    
      	
               
      

            	
              (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.

            	
              Special
      Change in Control Bonus Payment to be Paid Upon Change in
      Control.

            


    

     

    


     

    
      	
               
      

            	
              (a)

            	
              Subject
      to the Company's receipt of a Release (as defined in Section 14 below),
      the Employee shall be entitled to the Special Change in Control Bonus
      Payment upon the occurrence of a Change in Control during the
      Term.  Subject to the provisions of Section 14, such bonus shall
      be paid to the Employee within four (4) business days following the later
      to occur of (a) the Change in Control and (b) the Company's receipt of a
      Release.

            


    

     

    


     

    
      	
               
      

            	
              (b)

            	
              Subject
      to the Company's receipt of a Release, the Employee shall be entitled to
      the Special Change in Control Bonus Payment upon the occurrence of a
      Change in Control after the expiration of the Term, but only if all of the
      conditions specified in subparagraphs (i) through (iii) below are
      satisfied (in addition to receipt of the
  Release):

            


    

     

    


     

    
      	
               
      

            	
              (i)

            	
              If
      the Employee’s employment by the Company is not terminated prior to the
      expiration of the Term; and

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    
      	
               
      

            	
              (ii)

            	
              if
      either (A) a definitive agreement relating to a Change in Control has been
      executed prior to the expiration of the Term, or (B) 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;
and

            


    

     

    


     

    
      	
               
      

            	
              (iii)

            	
              if
      Employee is employed by the Company at the time the transaction
      contemplated by that definitive agreement is
  consummated.

            


    

     

    


     

    Subject
to the provisions of Section 14, such bonus shall be paid to the Employee upon
the later to occur of (a) the Change in Control and (b) the Company's receipt of
a Release.

     

    


     

    
      	
              4.

            	
              Payment
      of Special Change in Control Bonus Payment Following 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, the Employee (or his or her
      beneficiary in the event of death or Disability) shall be entitled to the
      Special Change in Control Bonus Payment if any of the
      conditions specified in subparagraphs (i) through (iii) below are
      satisfied (in addition to receipt of the
  Release):

            


    

     

    


     

    
      
        	
              	
                (i) 

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

              


      

    

     

    


     

    
      
        	
              	
                (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

              


      

    

     

    


     

    
      	
               
      

            	
              (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.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    
      	
               
      

            	
              (b)

            	
              For
      purposes of Section 4(a), the effective date of termination of the
      Employee’s employment with the Company shall be determined under his/her
      Employment Agreement. Subject to Section 14, such bonus shall be paid upon
      the later to occur of (a) the Change in Control and (b) the Company's
      receipt of a Release.

            


    

     

    


     

    
      	
               
      

            	
              (c)

            	
              For
      the avoidance of doubt, in the event of a termination of the Employee’s
      employment during the Term for any reason other than a reason specified in
      the opening paragraph of Section 4(a) above, the Employee shall not be
      entitled to a Special Change in Control Bonus
  Payment.

            


    

     

    


     

    
      	
               
      

            	
              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 this Agreement, and all discussions
      relating to this Agreement, are and shall remain confidential as between
      the parties, unless and to the extent, disclosure is required by law or to
      secure advice from a legal or tax
advisor.

            


    

     

    


     

    
      	
              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.

            


    

     

    


     

    
      	
              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 not 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 (the "Release"), and the
      expiration of all revocation periods related thereto.  In the
      event the Employee delivers the Release and a revocation period continues
      beyond the occurrence of a Change in Control, the payment otherwise
      payable upon a Change in Control shall be paid into an escrow for the
      benefit of the Employee and released to the Employee upon expiration of
      the revocation period.  If the Employee revokes the Release, no
      bonus shall be payable under this
Agreement.

            


    

     

    
      	
              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:

            


    

    


    


    
      	
              If
      to the Employee:

            	
              ___________________

            


    

    ___________________

    ___________________

    (or to
such other address as the Company may have on file for Employee’s personal
residence at the time such notice is provided).

    


    
      	
              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:

              	 
      	
                By:

              
	
                Title:

              	 
      	
                Title:

              


      

    

    
       

      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Schedule
of Parties to the

    Form of
Amended and Restated Special Change In Control Bonus Agreement

    (Provided
per Instruction 2 to Item 601 of Regulation S-K)

     

    
      
        
          
            	
                    
                      Name

                    

                  	 	
                    
                      Title

                    

                  	 	
                    Special
      Change in Control Bonus Payment

                  	 
	
                    Christopher
      C. Froman

                  	 	
                    President
      and Chief Executive Officer

                  	 	$	350,000	 
	
                    Craig
      J. Propst

                  	 	
                    Senior
      Vice President, Treasurer and Chief Financial Officer

                  	 	$	225,000	 
	
                    Luther
      K. Kearns

                  	 	
                    Senior
      Vice President-Service Delivery and Alliances

                  	 	$	245,000	 
	
                    Keith
      Blachowiak

                  	 	
                    Senior
      Vice President of Operations and Chief Information Officer

                  	 	$	235,000	 
	
                    Peter
      J. Thelen

                  	 	
                    Senior
      Vice President-Sales and Marketing

                  	 	$	225,000