exv10w26









Exhibit 10.26




FORM OF FIRST AMENDMENT TO

CHANGE OF CONTROL AGREEMENT




     This First Amendment (this “Amendment”) to the Change of Control Agreement (the “Change of Control
Agreement”), dated as of                     , between Coinstar, Inc., a Delaware corporation (“Employer”), and
                     (“Employee”) is entered into on                     , 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 to read as follows:



     1.3 Duties, Authority and Responsibility




     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:



     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, 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 a mended (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 5.1(c) is amended to read as follows:




(c) If, as a result of the termination of the Employee’s employment, the Employee and the
Employee’s spouse and dependent children are eligible for and timely (and properly) elect
to continue coverage under the Employer’s group health plan(s) in



 









 







accordance with Code
Section 4980B(f) (“COBRA”), the Employer shall pay the premium for such coverage for a
period of twelve (12) months following the Date of Termination or until the Employee is no
longer entitled to COBRA continuation coverage under the Employer’s group health plan(s),
whichever period is the shorter.



     4. Section 5.4 is amended to read as follows:



     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 the 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. Section 5.5 is amended to read as follows:



     5.5 Good Reason




     (a) For purposes of this Agreement, subject to Section 5.5(b), “Good Reason” means the
occurrence 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) 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



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     (iv) Any other action or inaction by the Employer that constitutes a material breach by the
Employer of this 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. Section 7 is amended to read as follows:



     7. SECTION 409A COMPLIANCE




     The Employer makes no representations or warranties to the 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
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 the Employee or any
other person to the Employer, any of its affiliates or any other person. The 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



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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 the Employee’s employment are intended to mean the Employee’s
“separation from service,” within the meaning of Code Section 409A(a)(2)(A)(i). In
addition, if the Employee is a “specified employee,” within the meaning of Code Section
409A(a)(2)(B)(i), when the Employee separates from service, within the meaning of Code
Section 409A(a)(2)(A)(i), then to the extent necessary to avoid subjecting the 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 the
Employee’s separation from service shall not be paid to the Employee during such period,
but shall instead be accumulated and paid to the Employee (or, in the event of the
Employee’s death, the Employee’s estate) in a lump sum on the first business day following
the earlier of (a) the date that is six months after the Employee’s separation from service
or (b) the Employee’s death.



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



	 	 	 	 	 	 	 
	 	 	COINSTAR, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	[Employee]

	 	Its	 	 	 	 
	 

	 	 	 	 	 	 





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