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:
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For purposes of
this Agreement, “Change in Control” shall mean
the first to occur of any of the following events:
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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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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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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
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approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company.
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(b) “
Board ” shall mean the Board of Directors of the
Company.
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“
Disability ” shall have the meaning as set forth in
the Employment Agreement by and between Employee and the Company
dated ________________, or subsequent replacement
thereof.
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“
Special Change in Control Bonus Payment ” shall mean
$__________.
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“
Term ” shall have the meaning set forth in Section 2
below.
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Term of
Agreement; Duties.
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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.
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The Employee
shall have such duties and obligations as are set forth in the
Employment Agreement by and between Employee and
Company.
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Special Change
in Control Bonus Payment to be Paid Upon Change in
Control.
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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.
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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):
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If the
Employee’s employment by the Company is not terminated prior
to the expiration of the Term; and
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