Exhibit 10.32
REVISED FORM OF EXECUTIVE
RESTRICTED STOCK AGREEMENT
This Revised Form of Executive
Restricted Stock Agreement (the “ Agreement ”)
is entered into this 8 th day of May, 2009 between Marchex, Inc., a
Delaware corporation (the “ Company ”) and
(the “ Participant ”).
WITNESSETH:
WHEREAS, the Compensation Committee
of the Company has agreed to grant to the Participant,
shares of the Company’s Class B
common stock, par value $0.01 per share (the “ Shares
” or “ Common Stock ”) in accordance with
the terms and conditions of the Company’s 2003 Amended and
Restated Stock Incentive Plan (the “ Plan ”);
and
WHEREAS, the Shares are subject to
certain restrictions; and
WHEREAS, a condition to the grant of
the Shares to the Participant is that the Participant execute this
Agreement.
NOW, THEREFORE, in consideration of
the foregoing, the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1. Grant of Shares . Subject
to the terms, conditions and restrictions of the Plan and this
Agreement, the Company hereby awards to the Participant,
Shares on May 8, 2009 (the “
Grant Date ”). To the extent required by law, the
Participant shall pay the Company the par value ($0.01) (the
“ Purchase Price ”) for each Share awarded to
the Participant simultaneously with the execution of this Agreement
in cash or cash equivalents payable to the order of the Company.
Pursuant to the Plan and Section 4 of this Agreement, the
Shares are subject to certain restrictions, which restrictions
shall expire in accordance with the provisions of the Plan and
Section 4 hereof. While such restrictions are in effect, the
Shares subject to such restrictions shall be referred to herein as
“ Restricted Stock ”, and Shares as to which
such restrictions have expired shall be referred to herein as
“ Vested Shares .”
2. Right to Repurchase Upon
Termination of Employment Relationship . In the event
Participant’s employment relationship with the Company
terminates, for any reason whatsoever, whether due to voluntary or
involuntary action, death, disability or otherwise, the Company
shall have the right to repurchase at the original price paid
therefor all or any portion of the Restricted Stock, which right
may be exercised at any time and from time to time within ninety
(90) days after the date of such termination.
3. Exercise of Right of
Repurchase . The Company may exercise its right of repurchase
by providing written notice to the Participant stating the number
of Shares of Restricted Stock to be repurchased, the aggregate
price to be paid (the “ Repurchase Price ”) and
the date (the “ Repurchase Date ”) such
repurchase shall occur (which shall be a date not fewer than ten
(10) and not more than thirty (30) days from the date of
such notice). On the Repurchase Date, the Company shall deliver the
Repurchase Price to the Participant, by check or
wire of immediately available funds, against
delivery of the certificate or certificates representing the Shares
to be repurchased and duly endorsed stock powers.
4. Vesting of Shares . So
long as the Participant continues to remain as an employee of the
Company, the Shares will be deemed to become “Vested
Shares” as follows: 25% of the total Shares shall vest on
each of the first, second, third and fourth anniversaries,
respectively, of the Grant Date such that the Shares shall be
vested in full on the fourth anniversary of the Grant Date. One
hundred percent (100%) of the Shares not already vested as of
the date of a Change of Control, shall become immediately vested
upon such Change of Control. For the purposes hereof, “
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
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“ 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
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 reducing the number of
Voting Securities outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Person, provided that if a
Change of Control would occur (but for the operation of this
sentence) and after such acquisition of Voting Securities by the
Company, the Subject Person becomes the Beneficial Owner of any
additional Voting Securities, then a Change of Control shall
occur.
There shall be no proportionate or
partial vesting in the periods prior to the applicable vesting
dates and all vesting shall occur only on the appropriate vesting
date. The Compensation Committee may, in its sole discretion,
provide for accelerated vesting of the Restricted Stock
at
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any time. Fractional shares of Common Stock
resulting from any vesting hereunder shall be aggregated until, and
eliminated at, the time of vesting by rounding-down for fractions
less than one-half and rounding-up for fractions equal to or
greater than one-half. Cash settlements shall be made w
