THIS TRANSITION
AGREEMENT (the “Agreement”) is entered into by and
between David W. Cole (“Mr. Cole”) and Coinstar, Inc.,
a Delaware corporation (“Company” or
“Employer”) as of March 31, 2009. Mr. Cole
has voluntarily resigned from his position as Chief Executive
Officer of the Company. This resignation is effective
March 31, 2009 (“Resignation Date”).
1.
TRANSITION PAYMENTS & BENEFITS
Mr. Cole will
be paid a total of Five Hundred Thousand Dollars ($500,000.00),
less all applicable deductions and tax withholdings. Payment shall
be made to Mr. Cole in twenty-four (24) substantially equal
semi-monthly installments at regularly scheduled payroll intervals,
beginning April 1, 2009, and continuing for eleven
(11) consecutive months thereafter; provided, however, that
the installments that would normally be paid in the months of
April 2009 through September 2009, shall be accumulated
without interest and paid to Mr. Cole in October 2009.
For purposes of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), each such installment
shall be treated as a separate payment.
The vesting of
Mr. Cole’s outstanding unvested stock options has been
accelerated such that all tranches of such options that would have
become vested on or prior to March 31, 2010 are fully vested
and exercisable on March 31, 2009. All of
Mr. Cole’s vested unexercised stock options outstanding
on March 31, 2009, including the stock options so accelerated,
will remain exercisable until June 30, 2010, and to the extent
not exercised will be cancelled as of 5:00 PM Pacific Time on that
date. The vesting of Mr. Cole’s outstanding time-vested
restricted stock has been accelerated such that all tranches of
such restricted stock that would have become vested on or prior to
March 31, 2010 are fully vested on March 31, 2009 so that
the restrictions on such shares lapse and such shares are no longer
subject to forfeiture on that date. The vesting of
Mr. Cole’s outstanding earned performance-based
restricted stock has been accelerated such that all tranches of
such restricted stock are fully vested on March 31, 2009 so
that the restrictions on such shares lapse and such shares are no
longer subject to forfeiture on that date.
2.
NON-INTERFERENCE WITH COMPANY’S EMPLOYMENT
RELATIONSHIP
Mr. Cole
agrees that he will not directly or indirectly seek to induce the
departure of or hire away any current employees of the Company for
a period of one (1) year from the Resignation Date. In
addition, Mr. Cole agrees not to interfere in any manner with
the employment relations between the Company and its other
employees.
3. GENERAL
WAIVER AND RELEASE OF CLAIMS
Mr. Cole
expressly waives any and all claims against the Company and
releases the Company (including its officers, directors,
stockholders, employees, agents, and representatives) from any and
all claims, whether known or unknown, that he may have that in any
way relate to the employment relationship with the Company,
including the termination of the employment relationship and any
disqualification of incentive stock options. It is understood that
this release includes, but is not limited to, any claims for wages,
bonuses, employment benefits, or damages of any kind whatsoever,
arising out of any contracts, expressed or implied, any theory
of
wrongful
discharge, any legal restriction on the employment relationship or
the Company’s right to terminate employees, or any federal,
state, or other governmental statute or ordinance, including,
without limitation, Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, or the Washington Law Against
Discrimination. Mr. Cole represents that he has not filed any
complaints, charges, or lawsuits against the Company with any
governmental agency or any court, and agrees that he will not
initiate or encourage any such actions, and will not assist any
such actions other than as required by law. This waiver and release
shall not waive or release any claims under this Agreement or
predicated on acts that occur after the date of execution of this
Agreement.
4. REVIEW
PERIOD AND REVOCATION PERIOD; EFFECTIVE DATE
Mr. Cole
acknowledges that his waiver and release hereunder of any rights he
may have under the Age Discrimination in Employment Act of 1967
(“ADEA”), including any amendments, is knowing and
voluntary. The Company and Mr. Cole agree that this waiver and
release does not apply to any rights or claims that may arise under
the ADEA after the effective date of this Agreement. Mr. Cole
acknowledges that he has b
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