POMEROY IT SOLUTIONS, INC. AMENDED AND RESTATED SPECIAL CHANGE IN CONTROL BONUS AGREEMENT
POMEROY
IT SOLUTIONS, INC.
AMENDED
AND RESTATED
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 ▇▇▇▇▇▇▇ 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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1.
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Definitions.
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(a)
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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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(i)
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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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(ii)
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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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(iii)
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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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(iv)
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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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(c)
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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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(d)
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“Special Change in Control Bonus
Payment” shall mean
$__________.
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(e)
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“Term” shall have the
meaning set forth in Section 2
below.
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2.
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Term
of Agreement; Duties.
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(a)
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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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(b)
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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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3.
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Special
Change in Control Bonus Payment to be Paid Upon Change in
Control.
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(a)
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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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(b)
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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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(i)
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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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(ii)
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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
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(iii)
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if
Employee is employed by the Company at the time the transaction
contemplated by that definitive agreement is
consummated.
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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.
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4.
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Payment
of Special Change in Control Bonus Payment Following Termination of
Employment and Compensation upon
Termination.
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(a)
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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):
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(i)
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a
Change in Control occurs within 90 days following the date of such death,
Disability or termination of employment without
cause;
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(ii)
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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)
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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.
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(b)
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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.
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(c)
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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.
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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.
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6.
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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.
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7.
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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.
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8.
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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.
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9.
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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.
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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.
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11.
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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.
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12.
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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.
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13.
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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.
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14.
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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.
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15.
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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.
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16.
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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:
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___________________
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___________________
___________________
(or to
such other address as the Company may have on file for Employee’s personal
residence at the time such notice is provided).
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If
to the Company:
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Pomeroy
IT Solutions, Inc.
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▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: President
and Chief Executive Officer
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With
copy to:
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Pomeroy
IT Solutions, Inc.
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▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: General
Counsel
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement of the date first
written above.
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Pomeroy
IT Solutions, Inc.
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Employee
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________________________
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________________________
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By:
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By:
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Title:
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Title:
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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)
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Name
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Title
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Special
Change in Control Bonus Payment
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▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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President
and Chief Executive Officer
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$ | 350,000 | |||
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▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Senior
Vice President, Treasurer and Chief Financial Officer
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$ | 225,000 | |||
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Senior
Vice President-Service Delivery and Alliances
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$ | 245,000 | |||
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▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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Senior
Vice President of Operations and Chief Information Officer
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$ | 235,000 | |||
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▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Senior
Vice President-Sales and Marketing
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$ | 225,000 | |||