CHANGE OF CONTROL
AGREEMENT
This First
Amendment (this “Amendment”) to the Change of Control
Agreement (the “Change of Control Agreement”), dated as
of January 1, 2004, between Coinstar, Inc., a Delaware
corporation (“Employer”), and David W. Cole
(“Employee”) is entered into on December 31,
2008.
WHEREAS, Employer
and Employee wish to document an amendment to the Change of Control
Agreement;
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 Change of Control
Agreement shall be amended as follows:
1. Section 1.3
is amended as follows:
1.3 Authority,
Duties and Responsibilities
During the
Employment Period, the Employee’s authority, duties and
responsibilities shall be at least reasonably commensurate in all
material respects with the most significant of those held,
exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date.
2. Section 4.4
is amended to read as follows:
During the
Employment Period, “ Date of Termination
” means (a) if the Employee’s employment is
terminated by reason of death, at the end of the calendar month in
which the Employee’s death occurs, and (b) in all other
cases, the later of (i) five days after the date of personal
delivery of or mailing of, as applicable, the Notice of
Termination, and (ii) the date on which the Employee separates
from service, within the meaning of Section 409A(a)(2)(A)(i)
of the Internal Revenue Code of 1986, as amended (the
“Code”). The Employee’s employment and
performance of services will continue during such five-day period;
provided, however, that the Employer may, upon notice to the
Employee and without reducing the Employee’s compensation
during such period, excuse the Employee from any or all of his
duties during such period.
3. Section 5.4
is amended to read as follows:
Payments under
Section 5.1(a), 5.2 and 5.3 (other than payments of deferred
compensation, which shall be paid in accordance with the provisions
of the plan under which such compensation was deferred) shall be
paid to the Employee in a lump sum in cash within 30 days of
the Date of Termination. Payments under Section 5.1(b) shall
be paid to Employee in twelve (12) equal monthly installments,
beginning with the month following the month containing the Date of
Termination and continuing for eleven (11) consecutive months
thereafter. For purposes of Code Section 409A, each
installment payable pursuant to Section 5.1(b) and this
Section 5.4 shall be treated as a separate payment.
4. Section 5.5
is amended to read as follows:
(a) For purposes
of this Agreement, subject to Section 5.5(b), “
Good Reason ” means the occurrence or existence
of any of the following events or conditions without the
Employee’s express written consent:
(i)
A diminution in the Employee’s Annual Base Salary;
(ii)
A diminution in the Employee’s authority, duties or
responsibilities as contemplated by Section 1.3 hereof ,
excluding for this purpose reasonable changes in particular duties
and reporting responsibilities which may result from the Employer
becoming part of a larger business organization at some future time
provided that such changes in the aggregate do not result in a
material alteration in the Employee’s authority, duties or
responsibilities;
(iii)
Any failure by the Employer to comply with and satisfy
Section 7 of the Employment Agreement, provided that the
Employer’s successor has received at least ten days’
prior written notice from the Employer or the Employee of the
requirements of Section 7 thereof;
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