exv10w28







Exhibit 10.28




FIRST AMENDMENT TO




EMPLOYMENT OFFER LETTER




     This First Amendment (this “Amendment”) to the Employment Offer Letter (the “Offer Letter”),
dated as of March 10, 2008, between Jones Soda Co., a Washington corporation (“Employer”), and Tom
O’Neill (“Employee”) is entered into on December 29, 2008.



     WHEREAS, Employer and Employee wish to document an amendment to the Offer Letter;



     NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Employer and Employee hereby agree that, effective January 1, 2009, the Offer
Letter shall be amended as follows:



     The Section entitled “Severance” is deleted in its entirety and replaced with the following:




	 	Severance:	 	If the Company terminates your employment without Cause (as
defined below) (a) more than ninety (90) days after the
beginning of your employment with Jones Soda or (b) at any time
after the occurrence of a material change in the current
reporting structure, and you are not entitled to severance
benefits under the next paragraph, you will receive a lump sum
payment equal to six (6) months of your then base salary,
payable within two and one-half (2-1/2) months following your
termination date.
	 
	 	 	 	If the Company terminates your employment without Cause more
than twelve (12) months after the beginning of your employment
with Jones Soda or if the Company or its successor terminates
your employment without Cause in connection with a “Corporate
Transaction” (as defined in the Company’s 2002 Stock Option and
Restricted Stock Plan), you will receive the following
severance benefits:















 













	 	(i)	 	A lump sum payment equal to the sum of twelve (12) months
of your then current base salary plus your target bonus,
payable within two and one-half (2-1/2) months following your
termination date;
	 
	 	(ii)	 	If, as a result of your termination, you and your spouse
and dependent children are eligible for, and timely (and
properly) elect, to continue your coverage under the Company’s
group health plans in accordance with Section 4980B(f) of the Internal Revenue Code of 1986, as amended (“COBRA”), the
Company will pay the premium for such coverage for a period of
twelve (12) months following your termination date or until you
are no longer entitled to COBRA continuation coverage under the
Company’s group health plans, whichever period is shorter; and
	 
	 	(iii)	 	100% of your outstanding stock options and restricted
stock grants will vest immediately.






	 	 	 	All amounts payable pursuant to this Section shall be reduced
for applicable deductions and tax withholding.
	 
	 	 	 	No severance or vesting will be provided if you are terminated
for Cause. Cause is defined as:






	 	(i)	 	Conviction of any felony or misdemeanor;
	 
	 	(ii)	 	Breach of Jones Soda’s Code of Ethics or Insider Trading
Policy or Jones Regulation FD policies, as now in effect or as
modified in the future; or
	 
	 	(iii)	 	Attempt to obstruct or failure to cooperate with any
investigation authorized by Jones Soda or any governmental or
self-regulatory entity.






	 	 	 	The severance payments and benefits described above (and all
other payments and benefits provided for in this letter) are
intended to be exempt from the requirements of Section 409A of
the Internal Revenue Code of 1986, as amended (“Section 409A”)
to the maximum extent possible, whether pursuant to the
short-term deferral exception described in Treasury Regulation
Section 1.409A-1(b)(4), the involuntary separation pay plan
exception described in Treasury Regulation Section
1.409A-1(b)(9)(iii), or otherwise. To the extent Code Section
409A is applicable to such payments and benefits, the parties
intend that this letter (and such payments and benefits) shall
comply with the deferral, payout and other limitations and
restrictions imposed under Section 409A and the regulations,
rulings and other guidance issued thereunder. Notwithstanding
any other provision of this letter to the contrary, this letter
shall be interpreted, operated and administered in a manner
consistent with such intentions. Without limiting the
generality of the foregoing, and notwithstanding any other
provision of this letter to the contrary, with respect to any
payments and benefits under this letter to which




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	 	 	 	Section 409A applies, all references in this letter to termination of your
employment are intended to mean your “separation from service,”
within the meaning of Section 409A(a)(2)(A)(i). In addition,
if you are a “specified employee,” within the meaning of Code
Section 409A(a)(2)(B)(i), when you separate from service,
within the meaning of Section 409A(a)(2)(A)(i), then to the
extent necessary to avoid subjecting you to the imposition of
any additional tax under Section 409A, amounts that would
otherwise be payable under this letter during the six-month
period immediately following your separation from service shall
not be paid to you during such period, but shall instead be
accumulated and paid to you (or, in the event of your death, to
your estate) in a lump sum on the first business day following
the earlier of (a) the date that is six months after your
separation from service or (b) your death.





     IN WITNESS WHEREOF, the parties have executed and entered into this Amendment on the date set
forth above.








	 	 	 	 	 	 	 	 	 
	 	 	JONES SODA CO.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Thomas P. O’Neill
 


	 	By 
	 	/s/ Michael R. O’Brien
 

	 	 
	Tom O’Neill
	 	 	 	Its
	 	CFO
	 	 
















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