exv10w8






Exhibit 10.8




AMENDED AND RESTATED




CHANGE OF CONTROL AGREEMENT




     This Amended and Restated Change of Control Agreement (this “Agreement”), dated as of April 1,
2009 is between Coinstar, Inc. (the “Employer”), and Paul Davis (the “Employee”). This Agreement
is an exhibit to that certain Amended and Restated Employment Agreement dated as of April 1, 2009
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”).




	 	 	 
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     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.



     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



	 	 	 
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person or committee appointed by the Board to determine fringe benefit programs and other emoluments).




     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.




	 	 	 
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     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
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.



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 Date of Termination occurs and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of Termination, and the
denominator of which is 365; and




          (iii) any compensation previously deferred by the Employee (together with accrued
interest or earnings thereon, if any) as such deferred compensation becomes payable under
the deferral plan, and any accrued vacation pay, in each case to the extent not theretofore
paid; and



          (b) an amount as separation pay equal to the Employee’s Annual Base Salary.





	 	 	 
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     5.2 Termination for Cause or Other Than for Good Reason



     If the Employee’s employment shall be terminated by the Employer for Cause as defined in the
Employment Agreement or by the Employee for other than Good Reason during the Employment Period,
this Agreement shall terminate without further obligation to the Employee other than the obligation
to pay to the Employee his Annual Base Salary through the Date of Termination plus the amount of
any compensation previously deferred by the Employee (as such deferred compensation becomes payable
under the deferral plan), in each case to the extent theretofore unpaid.



     5.3 Termination Because of Death or Total Disability



     If the Employee’s employment is terminated by reason of the Employee’s death or total
disability during the Employment Period, this Agreement shall terminate automatically without
further obligations to the Employee or his legal representatives under this Agreement, other than
for payment of Accrued Obligations (which shall be paid to the Employee’s estate or beneficiary, as
applicable in the case of the Employee’s death).



     5.4 Payment Schedule



          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.




     5.5 Good Reason



          (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




	 	 	 
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received at least ten days’ prior written notice from the Employer or the Employee of
the requirements of Section 7 thereof;




          (iv) A relocation of the Employee’s principal place of employment to a location more
than 50 miles from the Seattle metropolitan area, except for required travel on the
Employer’s business to an extent substantially consistent with the Employee’s duties and
responsibilities; or




          (v) Any other action or inaction by the Employer that constitutes a material breach by
the Employer of this Agreement or the Employment Agreement.



     (b) Notwithstanding any provision in this Agreement to the contrary, termination of employment
by the Employee will not be for Good Reason unless (i) the Employee notifies the Employer in
writing of the occurrence or existence of the event or condition which the Employee believes
constitutes Good Reason within 90 days of the occurrence or initial existence of such event or
condition (which notice specifically identifies such event or condition), (ii) the Employer fails
to remedy such event or condition within 30 days after the date on which it receives such notice
(the “Remedial Period”), and (iii) the Employee actually terminates employment within 90 days after
the expiration of the Remedial Period and before the Employer remedies such event or condition. If
the Employee terminates employment before the expiration of the Remedial Period or after the
Employer remedies the event or condition (even if after the end of the Remedial Period), then the
Employee’s termination will not be considered to be for Good Reason.



     6. REPRESENTATIONS, WARRANTIES AND OTHER CONDITIONS



     In order to induce the Employer to enter into this Agreement, the Employee represents and
warrants to the Employer as follows:



     6.1 No Violation of Other Agreements



     The Employee represents that neither the execution nor the performance of this Agreement by
the Employee will violate or conflict in any way with any other agreement by which the Employee may
be bound.



     6.2 Reaffirmation of Obligations



     The Employee hereby acknowledges and reaffirms the Employee Proprietary Information and
Inventions Agreement previously executed by Employee on the date hereof and Employee’s obligations
under Section 4 of the Employment Agreement.



     7. CODE SECTION 409A



     The Employer makes no representations or warranties to Employee with respect to any tax,
economic or legal consequences of this Agreement or any payments or other benefits provided
hereunder, including without limitation under Code Section 409A, and no provision




	 	 	 
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of this Agreement shall be interpreted or construed to transfer any liability for failure to
comply with Code Section 409A or any other legal requirement from Employee or any other person to
the Employer, any of its affiliates or any other person. Employee, by executing this Agreement,
shall be deemed to have waived any claim against the Employer, its affiliates and any other person
with respect to any such tax, economic or legal consequences. However, the parties intend that
this Agreement and the payments and other benefits provided hereunder shall be exempt from the
requirements of Code 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 this
Agreement (and such payments and benefits), the parties intend that this Agreement (and such
payments and benefits) shall comply with the deferral, payout and other limitations and
restrictions imposed under Code Section 409A. Notwithstanding any other provision of this
Agreement to the contrary, this Agreement 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 Agreement to the contrary, with respect to any payments
and benefits under this Agreement to which Code Section 409A applies, all references in this
Agreement to termination of Employee’s employment are intended to mean Employee’s “separation from
service,” within the meaning of Code Section 409A(a)(2)(A)(i). In addition, if Employee is a
“specified employee,” within the meaning of Code Section 409A(a)(2)(B)(i), when Employee separates
from service, within the meaning of Code Section 409A(a)(2)(A)(i), then to the extent necessary to
avoid subjecting Employee to the imposition of any additional tax under Code Section 409A, amounts
that would otherwise be payable under this Agreement during the six-month period immediately
following Employee’s separation from service shall not be paid to Employee during such period, but
shall instead be accumulated and paid to Employee (or, in the event of Employee’s death, Employee’s
estate) in a lump sum on the first business day following the earlier of (a) the date that is six
months after Employee’s separation from service or (b) Employee’s death.



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



	 	 	 	 	 	 	 	 	 
	 	 	EMPLOYEE	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	     /s/ Paul Davis	 	 
	 	 	 	 	 
	 	 	Paul Davis	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	COINSTAR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Donald Rench	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its
	 	Secretary
 

	 	 






	 	 	 
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APPENDIX A TO




AMENDED AND RESTATED CHANGE OF CONTROL

AGREEMENT




     For purposes of this Agreement, a “Change of Control” shall mean:



     (a) A “Board Change” which, for purposes of this Agreement, shall have occurred if individuals
who, as of the date of this Agreement, constitute the Board (the “Incumbent Board”) cease for any
reason to constitute at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination for election by the
Employer’s shareholders, was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person (as hereinafter defined) other than the Board; or



     (b) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of (i) 20% or more of either (A) the then outstanding
shares of Common Stock of the Employer (the “Outstanding Employer Common Stock”) or (B) the
combined voting power of the then outstanding voting securities of the Employer entitled to vote
generally in the election of directors (the “Outstanding Employer Voting Securities”), in the case
of either (A) or (B) of this clause (i), which acquisition is not approved in advance by a majority
of the Incumbent Directors, or (ii) 33% or more of either (A) the Outstanding Employer Common Stock
or (B) the Outstanding Employer Voting Securities, in the case of either (A) or (B) of this clause
(ii), which acquisition is approved in advance by a majority of the Incumbent Directors;
provided, however, that the following acquisitions shall not constitute a Change of
Control: (w) any acquisition directly from the Employer or in connection with an offering of the
Employer pursuant to a registration statement filed with and declared effective by the Securities
and Exchange Commission, (x) any acquisition by the Employer, (y) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Employer or any corporation
controlled by the Employer or (z) any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization, merger or consolidation, the conditions
described in clauses (i), (ii) and (iii) of subsection (c) of this Appendix A are satisfied; or



     (c) Consummation of a reorganization, merger or consolidation approved by the stockholders of
the Employer, in each case, unless, immediately following such reorganization, merger or
consolidation, (i) more than 60% of, respectively, the then outstanding shares of common stock of
the corporation resulting from such reorganization, merger or consolidation and the combined voting
power of the then outstanding voting




	 	 	 
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securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by all or
substantially all the individuals and entities who were the beneficial owners, respectively, of the
Outstanding Employer Common Stock and the Outstanding Employer Voting Securities immediately prior
to such reorganization, merger or consolidation in substantially the same proportion as their
ownership immediately prior to such reorganization, merger or consolidation of the Outstanding
Employer Common Stock and the Outstanding Employer Voting Securities, as the case may be, (ii) no
Person (excluding the Employer, any employee benefit plan (or related trust) of the Employer or
such corporation resulting from such reorganization, merger or consolidation and any Person
beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 33% or more of the Outstanding Employer Common Stock or the Outstanding Voting
Securities, as the case may be) beneficially owns, directly or indirectly, 33% or more of,
respectively, the then outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of directors, and
(iii) at least a majority of the members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were members of the Board at the time of the
execution of the initial agreement providing for such reorganization, merger or consolidation; or




     (d) Consummation of the following events approved by the stockholders of the Employer (i) a
complete liquidation or dissolution of the Employer or (ii) the sale or other disposition of all or
substantially all the assets of the Employer, other than to a corporation with respect to which
immediately following such sale or other disposition, (A) more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or substantially all the
individuals and entities who were the beneficial owners, respectively, of the Outstanding Employer
Common Stock and the Outstanding Employer Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their ownership, immediately prior to such sale
or other disposition, of the Outstanding Employer Common Stock and the Outstanding Employer Voting
Securities, as the case may be, (B) no Person (excluding the Employer, any employee benefit plan
(or related trust) of the Employer or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or indirectly, 33% or more of the
Outstanding Employer Common Stock or the Outstanding Employer Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 33% or more of, respectively, the then
outstanding shares of common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the board of directors of such corporation
were approved by a majority of the members of the Incumbent Board at the time of the execution of
the initial agreement or action of the Board providing for such sale or other disposition of assets
of the Employer.




	 	 	 
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     Notwithstanding the foregoing, there shall not be a Change of Control if, in advance of such
event, the Employee agrees in writing that such event shall not constitute a Change of Control.




	 	 	 
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