exv10w45







EXHIBIT 10.45




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 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:



     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.



     3. 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
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:



     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 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



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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.



     5. The following new Section 7 is inserted immediately following Section 6.2:



     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
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



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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.



     6. Appendix A Subsection (a) is amended to read as follows:




     (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



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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	COINSTAR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By
	 	/s/ Donald R. Rench
	 	 
	/s/
David W. Cole
 

David W. Cole

	 	  
	 	Its
	 	 

Secretary
 

	 	  






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