Exhibit 10.29
REVISED FORM OF RETENTION
AGREEMENT
This Revised Form of Retention
Agreement (the “Agreement”) is entered into effective
this 8th day of May 2009, between Marchex, Inc., a Delaware
corporation (the “Company”) and
(the “Executive”).
WITNESSETH:
WHEREAS, Executive is employed by
the Company or one of its wholly-owned subsidiaries (referred to
collectively as the “Company”) and the Company desires
to provide certain security to Executive in connection with any
potential change in control of the Company; and
NOW, THEREFORE, it is hereby agreed
by and between the parties, for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, 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 Internal
Revenue Code of 1986, as amended (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. Benefits Upon a Change of
Control . If within twelve (12) months following a Change
of Control (as defined below): (i) the Company shall terminate
the Executive’s employment with the Company without Cause (as
defined below), or (ii) the Executive shall voluntarily
terminate such employment with Good Reason (as defined below), the
Company shall provide reimbursement of health care premiums for
Executive and his dependents, for a period of eighteen
(18) months from the date of Executive’s Employment
Termination (as defined below), to the extent that Executive is
eligible for and elects continuation coverage under COBRA (provided
that such reimbursement shall terminate upon commencement of new
employment by an employer that offers health care coverage to its
employees).
3. Definitions . For purposes
of this Agreement:
(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.
(b) “Cause” shall mean
that the Company’s Board of Directors (the
“Board”) has reasonably determined in good faith that
any one or more of the following has occurred:
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(i)
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the Executive
shall have been convicted of, or shall have pleaded guilty or nolo
contendere to, any felony;
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(ii)
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the Executive
shall have willfully failed or refused to carry out the reasonable
and lawful instructions of the Board (other than as a result of
illness or disability) concerning duties or actions consistent with
the Executive’s then current position in a timely manner and
otherwise in a manner reasonable acceptable to the Board and such
failure or refusal shall have continued for a period of ten
(10) days following written notice from the Board describing
such failure or refusal in reasonable detail;
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(iii)
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the Executive
shall have breached any material provision of his confidentiality
and assignment of inventions agreement; or
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(iv)
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the Executive
shall have committed any material fraud, embezzlement,
misappropriation of funds, breach of fiduciary duty or other act of
dishonesty against the Company.
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(c) “Change of Control”
shall mean the occurrence of any of the following
events:
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(i)
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an acquisition
(other than directly from the Company) of any voting securities of
the Company (the “Voting Securities”) by any
“Person” or “Group” (as such terms are used
for the purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”))
immediately after which such Person or Group has Beneficial
Ownership (within the meaning of Rule l3d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more of the combined
voting power of the Company’s then-outstanding Voting
Securities; provided, however, in determining whether or not a
Change of Control has occurred, Voting Securities which are
acquired in a “Non-Control Acquisition” (as hereinafter
defined) shall not constitute an acquisition which would constitute
a Change of Control. A “Non-Control Acquisition” shall
mean an acquisition by (i) any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
affiliate of the Company, (ii) the Company, (iii) any
Person in connection with a Non-Control Transaction (as hereinafter
defined), or (iv) any holder of the Company’s
Class A Common Stock as of the date hereof;
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(ii)
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individuals
who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board;
or
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(iii)
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the
consummation of:
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(a)
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A merger,
consolidation or reorganization with or into the Company or in
which securities of the Company are issued, unless such merger,
consolidation or reorganization is a “Non-Control
Transaction”. A “Non-Control Transaction” is a
merger, consolidation or reorganization with or into the Company or
in which securities of the Company are issued where:
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A.
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the shareholders of the Company
immediately before such merger, consolidation, or reorganization,
own, directly or indirectly, at least fifty-one percent
(51%) of the combined voting power of the outstanding voting
securities of the corporation resulting form such merger,
consolidation or reorganization (the “Surviving
Corporation”) in substantially the same
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proportion as their ownership of
the Voting Securities immediately before such merger, consolidation
or reorganization,
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B.
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the individuals
who were members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger, consolidation
or reorganization constitute at least a majority of the members of
the board of directors of the Surviving Corporation or a
corporation owning directly or indirectly fifty-one percent
(51%) or more of the Voting Securities of the Surviving
Corporation, and
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C.
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no Person or
Group, other than (i) the Company, (ii) any subsidiary of
the Company, (iii) any employee benefit plan (or any trust
forming a part thereof) maintained by the Company immediately prior
to such merger, consolidation, or reorganization, or (iv) any
holder of the Company’s Class A Common Stock as of the
date hereof, owns twenty percent (20%) or more of the combined
voting power of the Surviving Corporation’s then-outstanding
voting securities; or
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(b)
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a complete
liquidation or dissolution of the Company; or
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(c)
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the sale of
disposition of all or substantially all of the assets of the
Company to any Person.
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Notwithstanding the foregoing, a
Change of Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial
Ownership of more than the permitted amount of the outstanding
Voting Securities as a result of the acquisition of Voting
Securities by the Company which, by redu
