Exhibit 10.28
FORM OF FIRST AMENDMENT TO
RETENTION AGREEMENT
This Form of First Amendment to
Retention Agreement (the “ Amendment ”) is made
effective as of May 8, 2009, by and between Marchex, Inc., a
Delaware corporation (the “ Company ”), and
(“ Executive ”), in order to amend the Retention
Agreement entered into between the Company and Executive effective
as of October 2, 2006 (the “ Retention Agreement
”).
WHEREAS, the parties desire to enter
into this Amendment to confirm the parties’ understanding of
the intent of Section 1 of the Retention Agreement and to
otherwise bring the provisions of the Retention Agreement into
documentary compliance with the applicable requirements of
Section 409A of the Internal Revenue Code, as amended (the
“ Code ”), and the Treasury Regulations issued
thereunder (“ Section 409A ”).
NOW, THEREFORE, in consideration of
the mutual covenants and promises herein contained, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and Executive hereby
agree as follows:
1. Section 1 of the Retention
Agreement is amended in its entirety to read as follows:
1. Payment Upon a Change of
Control . In the event of a Change of Control (as defined
below) and provided that Executive remains employed by the Company
until the date of the Change of Control, the Company shall, within
thirty (30) days of such Change of Control or such later date
as is required by Section 409A(a)(2)(B)(i) of the Code, make a
lump sum cash payment to Executive equal to two (2) times the
product of the Executive’s Annual Salary (as defined below)
plus the greater of the aggregate amount of any bonuses paid to or
earned by the Executive with respect to the Company’s
immediately prior fiscal year or such Executive’s pro rata
portion of the aggregate bonus pool under the Company’s
Annual Incentive Plan (the “Plan”) for the then current
fiscal year assuming achievement under the Plan of the maximum
performance targets for such fiscal year.
2. Section 3(a) of the
Retention Agreement is amended in its entirety to read as
follows:
(a) “Annual Salary”
shall mean Executive’s annualized base salary (including
Executive’s monthly car allowance, if any) in effect
immediately prior to the date of the Change of Control.
3. Section 4 of the Retention
Agreement is amended by adding at the end thereof the
following:
The Company shall pay the Gross-Up
Payment to Executive no later than the
