exv10w44






EXHIBIT 10.44




FIRST AMENDMENT TO




EMPLOYMENT AGREEMENT




     This First Amendment (this “Amendment”) to the Employment Agreement (the “Employment
Agreement”), dated as of December 31, 2008, 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 Employment 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
Employment Agreement shall be amended as follows:



     1. The second reference to Section 1.4 is corrected as Section 1.5.



     2. Section 3.1 is amended to read as follows:



     3.1 Termination by Employer




     If Employer terminates Employee’s employment without Cause during the Term, Employee
shall be entitled to receive (a) termination payments equal to twelve (12) months’ annual
base salary, and (b) any unpaid annual base salary which has accrued for services already
performed as of the date termination of Employee’s employment becomes effective. All
amounts payable pursuant to this Section 3.1 (or pursuant to Section 3.2) shall be reduced
for applicable deductions and tax withholding. If, as a result of the termination of
Employee’s employment without Cause, Employee and Employee’s spouse and dependent children
are eligible for and timely (and properly) elect to continue coverage under Employer’s
group health plan(s) in accordance with Code Section 4980B(f) (“COBRA”), Employer shall pay
the premium for such coverage for a period of twelve (12) months following the date of
Employee’s termination or until Employee is no longer entitled to COBRA continuation
coverage under Employer’s group health plan(s), whichever period is the shorter. All other
Employer benefits cease on the date of termination without Cause. If Employee is
terminated by Employer for Cause during the Term, Employee shall not be entitled to receive
any of the foregoing benefits, other than those set forth in Section 3.1(b) above.



     3. Section 3.3 is amended to read as follows:



     3.3 Payment Schedule




     All amounts payable pursuant to Section 3.1(b) and 3.2 hereof shall be paid to
Employee at the same time such amounts would have been paid to Employee had



 









 







Employee’s employment not been terminated (or at such earlier time as is required by law). All
amounts payable pursuant to Section 3.1(a) hereof shall be paid to Employee in twelve (12)
equal monthly installments, beginning with the month following the month containing the
date of Employee’s termination and continuing for eleven (11) consecutive months
thereafter. 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.



     4. The following new Section 3.5 is inserted immediately after Section 3.4:



     3.5 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 he/she 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



2









 







business day following the earlier of (a) the date that is six months after Employee’s
separation from service or (b) Employee’s death.



     5. The Section 6 copy address is amended as follows:



	 
	     Perkins Coie llp

	     Attn: Lynn E. Hvalsoe

	     1201 Third Ave., 48th Floor

	     Seattle, WA 98101-3099







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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	COINSTAR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/
David W. Cole

	 	 	 	By
	 	/s/ Donald R. Rench
	 	 
	 

David W. Cole

	 	 	 	Its
	 	 

Secretary
	 	 
	 

	 	 	 	 	 	 

	 	 






3