Exhibit 10(D)(iii)(A)
THIRD AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Third Amendment To Amended And Restated Employment Agreement is made
effective as of the day of , 2006, by and between Pomeroy IT
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Solutions, Inc., a Delaware corporation ("Company") and Stephen E. Pomeroy
("Executive").
WHEREAS, on the 3rd day of November, 2003, Company and Executive entered
into an Amended and Restated Employment Agreement;
WHEREAS, on the 6th day of January, 2004, Company and Executive entered
into a First Amendment to Amended and Restated Employment Agreement;
WHEREAS, on the 13th day of October, 2005, Company and Executive entered
into a Second Amendment to Amended and Restated Employment Agreement;
WHEREAS, pursuant to the provisions of Section 13 of the Amended and
Restated Employment Agreement, the parties reserve the right to amend the
Employment Agreement; and
WHEREAS, the parties are desirous of amending the Employment Agreement.
NOW THEREFORE, in consideration of the foregoing premises, and the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
1. Section 2 shall be deleted in its entirety and in lieu thereof the
following Section 2 shall be inserted:
2. Term. Subject to the provisions for termination as hereinafter
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provided, the term of this Employment Agreement began on the
Effective Date (November 3, 2003) and has run to September 30,
2006. Commencing October 1, 2006, the Employment Agreement shall
be for forty-five (45) months; provided, however that commencing
January 1, 2008, the term of Employment Agreement shall be
extended one day for each day of continued employment of
Executive, thereafter, so that the term of this Employment
Agreement on any day after December 31, 2007 shall be thirty (30)
months, unless this Employment Agreement is terminated as
provided in Section 7.
2. Section 5(e) shall be amended by adding at the end of that Section
the following language:
"The Company's current policy shall be to forward all requests
for reimbursement to the Chairman of the Audit Committee or his
designated representative."
3. Section 6(e) shall be amended by adding after the words, "upon
request" in the sixth line the language "of the Chairman of the Audit Committee
or his designated representative".
4. Section 7(c) - "Cause" shall be deleted in its entirety in lieu
thereof the following Section 7(c) shall be inserted:
(c) Cause. The Company may terminate the Executive's employment
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hereunder for Cause. For purposes of this Employment
Agreement, the Company shall have "cause" to terminate the
Executive's hereunder upon:
(i) The conviction of Executive of a felony or other crime
involving theft, misappropriation of funds, fraud
or moral turpitude;
(ii) The engaging by Executive in conduct which is
demonstrably and materially injurious to the
Company, monetarily or otherwise, including but not
limited to any material misrepresentation related to
the performance of his duties;
(iii) Executive's gross negligent or gross misconduct in
carrying out his duties hereunder resulting, in
either case, material harm to the Company;
(iv) Any breach by Executive of this Agreement.
Notwithstanding the foregoing, in the event the basis for a
termination for cause is under subsections 7 (c) (iii) or (iv) above,
Executive shall not be deemed to have been terminated for cause unless
and until there shall have been delivered to him a copy of the
Resolution of the Board of Directors or any appropriately designated
committee at the Board, providing that he has engaged in the conduct
set forth above in Section 7 (c) (iii) or (iv) (as interpreted and
enforced consistently with the Company's treatment of all other
executives and senior management) and specifying the particulars
thereof in detail, and Executive shall not have cured such conduct to
the reasonable satisfaction of the Board within 30 days of receipt of
such resolution.
The parties agree that no allegations concerning the conduct of
Executive or other events, occurrences or activities involving the
performance of Executive's duties and obligations under this
Employment Agreement known to the Company prior to the date hereof
shall constitute grounds for termination of Executive's employment
under Section 7 (c).
5. Section 7(e) shall be renumbered as Section 7(f).
6. Section 7(f) shall be renumbered as Section 7(g).
7. A new Section 7(e) shall be inserted as follows:
(e) Termination Without Cause. Commencing January 1, 2008, and
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thereafter, this Agreement may be terminated by the Company at
its discretion, without cause, upon 30 days written notice to
Executive, provided that Company complies with the provisions of
Section 8(d).
8. Renumbered Section 7(g) is amended by adding at the end of said
Section the following language:
Notwithstanding anything contained hereunder, in the event that
Executive's employment is terminated without cause pursuant to
subsection (e) above, the dispute procedure set forth in this Section
7(g) shall not be applicable.
9. Section 8(c) (ii) (A) shall be amended by deleting the words, "the
balance of the five year term of this Employment Agreement" in
lines 2 and 3 and inserting in lieu thereof the language, "for the
balance of the applicable term of this Employment Agreement, as set
forth in Section 2."
10. Section 8(c) (ii) (B) shall be amended by deleting the words "for
the five year period referenced in sub-paragraph (A) above" and
inserting in lieu thereof, "for the applicable period referenced in
sub-paragraph (A) above."
11. Section 8 shall be amended by adding at the end of Section 8(c) the
following new Section 8(d):
(d) If Company shall terminate Executive's employment without
cause pursuant to the provisions of Section 7(e):
(A) through the date of termination and thereafter for the
balance of the thirty (30) month term of this Employment
Agreement, Company shall pay and provide the Executive his full
base salary, bonus (in no event less than the amount of the
average bonus or bonuses for the two previous years) and all
other amounts under any compensation plan or program of Company
(including, but not limited to, payment for any stock option
award valued under the Black Scholes Method that was
made or would have been made under Section 5(f) had
Executive's employment not been terminated);
(B) Company shall continue the participation of the Executive
for the thirty (30) month period referred to in
sub-paragraph (a) above in all medical, life and other Executive
"welfare" benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of
Termination provided that Executive's continued participation is
possible under the general terms and provisions of such plans and
programs. In the event that Executive's participation in any such
plan or program is barred, the Company shall arrange to provide
the Executive with benefits substantially similar to those to
which the Executive would otherwise have been entitled to receive
under such plans and programs for which his continued
participation is barred; and
(C) all retention restricted stock awards that had been made
to Executive and performance restricted stock awards (for
which the applicable performance criteria have been satisfied)
shall be vested in full.
Except as modified by this Third Amendment to Amended and Restated
Employment Agreement, the terms of the Amended and Restated Employment
Agreement, as amended, are hereby affirmed and ratified by the parties.
IN WITNESS WHEREOF, this Third Amendment To Amended And Restated Employment
Agreement has been executed as of the day and year first above written.
WITNESSES: POMEROY IT SOLUTIONS, INC.
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By:
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Stephen E. Pomeroy
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