ex10_2.htm


    
      

    

    
      EXHIBIT
10.2

       

      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 6th day of January, 2009, by
and between Pomeroy IT Solutions, Inc., a Delaware corporation (the “Company”),
and Peter Thelen – Senior Vice President of Sales & Marketing, (the
“Executive”).

       

      WHEREAS,
the Company and the Executive have agreed that it is in their respective best
interests that (i) the ongoing services of the Executive be secured at this
time; and (ii) the Executive 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 Executive 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

              


      

       

      
        
           


        

        
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                (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 Amended and Restated Employment
      Agreement by and between Executive and Company dated January 8, 2009, or
      subsequent replacement there of.

              


      

       

      
        	
                 
      

              	
                (d)

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

              


      

       

      
        	
                 
      

              	
                (e)

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

              


      

       

      
        
           


        

        
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                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
      Executive shall have such duties and obligations as are set forth in the
      Amended and Restated Employment Agreement by and between Executive and
      Company.

              


      

       

      
        	
                 
      

              	
                3.

              	
                Payment
      of Special Change in Control Bonus Payment.  Subject to Section
      4 and Section 14 below, the Company shall pay the Executive the Special
      Change in Control Bonus Payment within four (4) after the release
      described in Section 14 below becomes effective and irrevocable in
      accordance with its terms.

              


      

       

      
        	
                 
      

              	
                4.

              	
                Termination
      of Employment and Compensation upon
Termination.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                In
      the event of termination of the Executive’s employment during the Term due
      to death,  Disability or by the Company without cause , as
      defined in the Amended and Restated Employment Agreement, Company shall
      pay to the Executive, 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
      Executive’s employment with the Company shall be determined under his/her
      Amended and Restated Employment
Agreement..

              


      

       

      
        	
                 
      

              	
                (b)

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

              


      

       

      
        	
                 
      

              	
                (c)

              	
                If
      the Executive’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 Executive 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 Executive is employed by the Company at such
      time.

              


      

       

      
        	
                 
      

              	
                5.

              	
                Withholding
      Taxes.  The Company shall withhold from any payment due to the
      Executive 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
      Executive 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 Executive, his/her
      heirs and legal representatives.  The Executive 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
      Executive, (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
      Executive’s rights to payments or benefits provided to the Executive under
      his/her Amended and Restated 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 Executive’s performance of the Executive’s
      obligations under his/her Amended and Restated Employment
      Agreement.

              


      

       

      
        	
              	
                14.

              	
                Waiver
      and Release.  The Executive acknowledges and agrees that any
      payment made under this Agreement is contingent upon Executive delivering
      to the Company at the time of such Change In Control a release in the form
      attached hereto as Exhibit A (with any changes deemed necessary by the
      Company to comply with applicable law), and the release becomes effective
      and irrevocable in accordance with its terms, no later than 60 days after
      the Change in Control.

              


      

       

      
        	
              	
                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 Executive:

              	
                Peter
      Thelen

              


      

      (@ the
home address on file in the Company’s records)

      


      
        	
                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.

                            	 
      	 
      	
                              Executive

                            	 
      
	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                              By:

                            	
                              Christopher
      C. Froman

                            	 
      	 
      	
                              By:

                            	
                              Peter
      Thelen

                            	 
      
	
                              Title:

                            	
                              President/Chief
      Executive Officer

                            	 
      	 
      	
                               

                            	
                               

                            	 
      


                    

                  

                

              

            

          

        

      

       

    

     

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