exv10w29






Exhibit 10.29




FIRST AMENDMENT TO




EMPLOYMENT OFFER LETTER




     This First Amendment (this “Amendment”) to the Employment Offer Letter (the “Offer Letter”),
dated as of August 15, 2008, between Jones Soda Co., a Washington corporation (“Employer”), and
Michael O’Brien (“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:



     1. 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 your reporting structure, and you are not
entitled to severance benefits under the next paragraph, you will receive six (6) months
severance at your then base salary, payable in equal installments on each of the Company’s
regularly scheduled pay days during the six (6) month period immediately 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)	 	twelve (12) months of your then current base salary, payable in equal
installments on each of the Company’s regularly scheduled pay days during the twelve
(12) month period immediately following your termination date;
	 
	 	(ii)	 	A lump sum payment equal to the last target bonus you received, paid within
two and one-half (2-1/2) months following your termination date;
	 
	 	(iii)	 	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




 









 












	 	(iv)	 	100% of your outstanding, unvested stock options and restricted stock grants.






	 	 	For purposes of Code Section 409A (as defined below), each installment or other payment
made pursuant to this severance section shall be treated as a separate payment. Moreover,
all amounts payable pursuant to this Section shall be reduced for applicable deductions and
tax withholding.
	 
	 	 	In order to receive the severance benefits described above, you must first sign (and not
revoke) a complete release in a form acceptable to Jones Soda releasing any claims against
Jones Soda and its directors, executives and employees, which release will be given to you
on your termination date and must become effective within thirty (30) days thereafter.
Severance benefits which would have been paid during such thirty (30) day period shall be
paid on the first regularly scheduled pay day occurring at least thirty-one (31) days after
your termination date, provided you have executed (and not revoked) the release described
above.
	 
	 	 	No severance or vesting will be provided if you are terminated for Cause. Cause is defined
as:






	 	(i)	 	Conviction of a crime, other than misdemeanor traffic offenses;
	 
	 	(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;
	 
	 	(iii)	 	Attempt to obstruct or failure to cooperate with any investigation
authorized by Jones Soda or any governmental or self-regulatory entity; or
	 
	 	(iv)	 	Willful failure or refusal to perform your duties that results in a material
adverse effect on Jones Soda.





     2. The paragraph addressing Section 409A is deleted in its entirety and replaced with the
following:




	 	 	This letter (and the payments and benefits hereunder) 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




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	 	 	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 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/ Michael R. O’Brien
 


	 	By 
	 	/s/ Jonathan J. Ricci

 

	 	 
	Michael O’Brien
	 	 	 	Its
	 	Chief Operating Officer
	 	 










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