EXHIBIT 10.44
FORM OF
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement
(this “Agreement”), dated as of April 7, 2008, is
between Coinstar, Inc. (the “Employer”), and Paul Davis
(the “Employee”). This Agreement is an exhibit to that
certain Employment Agreement dated as of April 7, 2008 between
the Employer and the Employee (the “Employment
Agreement”).
The Compensation Committee (the
“Committee”) of the Board of Directors (the
“Board”) of the Employer has determined that it is in
the best interests of the Employer and its stockholders to ensure
that the Employer will have the continued dedication of the
Employee, notwithstanding the possibility, threat or occurrence of
a Change of Control (as defined in Appendix A to this
Agreement, which is incorporated herein by this reference) of the
Employer. The Committee believes it is imperative to diminish the
inevitable distraction of the Employee arising from the personal
uncertainties and risks created by a pending or threatened Change
of Control, to encourage the Employee’s full attention and
dedication to the Employer currently and in the event of any
threatened or pending Change of Control, to encourage the
Employee’s willingness to serve a successor in an equivalent
capacity, and to provide the Employee with reasonable compensation
and benefits arrangements in the event that a Change of Control
results in the Employee’s loss of equivalent
employment.
In order to accomplish these
objectives, the Committee has caused the Employer to enter into
this Agreement.
1.
EMPLOYMENT
1.1 Certain Definitions
(a)
“ Effective Date ” shall mean the first date
during the Change of Control Period (as defined in
Section 1.1(b)) on which a Change of Control occurs.
(b)
“ Change of Control Period ” shall mean the
period commencing on the date of this Agreement and ending on the
second anniversary of the date the Employer gives notice to the
Employee that the Change of Control Period shall be
terminated.
1.2 Employment Period
The Employer hereby agrees to
continue the Employee in its employ or in the employ of its
affiliated companies, and the Employee hereby agrees to remain in
the employ of the Employer or its affiliated companies, in
accordance with the terms and provisions of this Agreement, for the
period commencing on the Effective Date and continuing until
terminated pursuant to Section 4 of this Agreement (the
“Employment Period”).
1.3 Position and Duties
During the Employment Period, the
Employee’s position, 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.
PAUL
DAVIS CHANGE OF CONTROL AGREEMENT 4-7-08
1.4 Employment Status
If prior to the Effective Date the
Employee’s employment with the Employer or its affiliated
companies terminates, then the Employee shall have no further
rights under this Agreement.
2.
ATTENTION AND EFFORT
During the Employment Period, and
excluding any periods of vacation and sick leave to which the
Employee is entitled, the Employee will devote all of his
professional productive time, ability, attention and effort to the
business and affairs of the Employer and the discharge of the
responsibilities assigned to him hereunder, and will use his best
efforts to perform faithfully and efficiently such
responsibilities.
3.
COMPENSATION
During the Employment Period, the
Employer agrees to pay or cause to be paid to the Employee, and the
Employee agrees to accept in exchange for the services rendered
hereunder by him, the following compensation:
3.1 Salary
The Employee shall receive an annual
base salary (the “Annual Base Salary”), at least equal
to the annual salary established by the Board prior to the
Effective Date for the fiscal year in which the Effective Date
occurs. The Annual Base Salary shall be paid in substantially equal
installments and at the same intervals as the salaries of other
officers of the Employer are paid.
3.2 Bonus
Employee may be entitled to receive,
in addition to the Annual Base Salary, an annual bonus in an amount
to be determined by the Board of Directors of the Employer in its
sole discretion.
3.3 Benefits
During the Employment Period, the
Employee shall be entitled to participate, subject to and in
accordance with applicable eligibility requirements, in such fringe
benefit programs as shall be provided to other executive employees
of the Employer and its affiliated companies from time to time
during the Employment Period by action of the Board (or any person
or committee appointed by the Board to determine fringe benefit
programs and other emoluments).
PAUL
DAVIS CHANGE OF CONTROL AGREEMENT 4-7-08
-2-
3.4 Expenses
During the Employment Period, the
Employee shall be entitled to receive prompt reimbursement for all
reasonable employment expenses incurred by him in accordance with
the policies, practices and procedures of the Employer and its
affiliated companies in effect for the employees of the Employer
and its affiliated companies during the Employment Period or
pursuant to an applicable travel policy.
4.
TERMINATION
Employment of the Employee during the
Employment Period may be terminated as follows but, in any case,
the nondisclosure and noncompetition provisions set forth in
Section 4 of the Employment Agreement shall survive the
termination of this Agreement and the termination of the
Employee’s employment with the Employer:
4.1 By the Employer or the
Employee
Upon giving Notice of Termination (as
defined below), the Employer may terminate the employment of the
Employee with or without Cause (as defined in the Employment
Agreement), and the Employee may terminate his employment for Good
Reason (as defined below) or for any reason, at any time during the
Employment Period.
4.2 Automatic
Termination
This Agreement and the
Employee’s employment during the Employment Period shall
terminate automatically pursuant to Section 2.3 of the
Employment Agreement upon the death or total disability of the
Employee. The Employee and the Employer hereby acknowledge that the
Employee’s presence and ability to perform the duties
specified in Section 1.3 hereof is of the essence of this
Agreement.
4.3 Notice of
Termination
Any termination by the Employer or by
the Employee during the Employment Period shall be communicated by
Notice of Termination to the other party given within 30 days
in accordance with Section 2.5 of the Employment Agreement.
The term “Notice of Termination” shall mean a written
notice which (a) indicates the specific termination provision
in this Agreement relied upon and (b) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Employee’s employment under the provision so indicated. The
failure by the Employer to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Cause
shall not waive any right of the Employer hereunder or preclude the
Employer from asserting such fact or circumstance in enforcing the
Employer’s rights hereunder.
4.4 Date of Termination
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
PAUL
DAVIS CHANGE OF CONTROL AGREEMENT 4-7-08
-3-
Employee’s death occurs, and (b) in all other cases,
five days after the date of personal delivery of or mailing of, as
applicable, the Notice of Termination. 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.
5. TERMINATION PAYMENTS
In the event of termination of the
Employee’s employment during the Employment Period, all
compensation and benefits set forth in this Agreement shall
terminate except as specifically provided in this
Section 5.
|
5.1 |
|
Termination by the Employer for Other Than Cause or by the
Employee for Good Reason |
If the Employer terminates the
Employee’s employment other than for Cause or the Employee
terminates his employment for Good Reason prior to the end of the
Employment Period, the Employee shall be entitled to:
(a) Receive
payment of the following accrued obligations (the “Accrued
Obligations”):
(i)
the Employee’s Annual Base Salary through the Date of
Termination to the extent not theretofore paid;
(ii)
the product of (x) the Annual Bonus payable with respect to
the fiscal year in which the
| 
