Exhibit 10.5
EMPLOYMENT AGREEMENT
COINSTAR, INC.
and
XXXXX XXXXX
Dated as of June 18, 2001
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of June 18, 2001,
between Coinstar, Inc., a Delaware corporation ("Employer"), and Xxxxx Xxxxx
("Employee");
W I T N E S S E T H:
--------------------
WHEREAS, Employer and Employee wish to document certain understandings and
agreements; and
WHEREAS, Employer desires to continue to employ Employee upon the terms and
conditions set forth herein; and
WHEREAS, Employee is willing to provide services to Employer upon the terms
and conditions set forth herein;
A G R E E M E N T S:
--------------------
NOW, THEREFORE, for and in consideration of the foregoing premises and for
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Employer and Employee hereby agree as follows:
1. EMPLOYMENT
Employer will continue to employ Employee and Employee will continue to
provide services to Employer as its Chief Administrative Officer.
2. ATTENTION AND EFFORT
Employee will devote all of her productive time, ability, attention and
effort to Employer's business and will skillfully serve its interests during the
term of this Agreement.
3. TERM
Unless otherwise terminated pursuant to paragraph 6 of this Agreement,
Employee's term of employment under this Agreement shall expire on December 31,
2002.
4. COMPENSATION
During the term of this Agreement, Employer agrees to pay or cause to be
paid to Employee, and Employee agrees to accept in exchange for the services
rendered hereunder by her, the following compensation:
________________________________________________________________________________
1
4.1. Base Salary
Employee's compensation shall consist, in part, of an annual base salary of
One Hundred Seventy Thousand Dollars ($170,000) before all customary payroll
deductions. Such annual base salary shall be paid in substantially equal
installments and at the same intervals as other officers of Employer are paid.
Employee's salary shall be reviewed annually by Employer's Compensation
Committee to determine in its discretion an appropriate increase in the base
salary.
4.2. Bonus
Employee shall be eligible for and receive her annual cash bonus for each
calendar year during the term of this Agreement, provided Employer meets
performance targets applicable to such bonuses, and, provided further, any such
bonus shall be pro-rated in the event of a termination without Cause or for Good
Reason.
4.3. Acceleration of Stock Options
One-hundred percent (100%) of Employee's unvested Coinstar options shall
immediately vest in the event Employee is terminated without Cause or terminates
for Good Reason during the term of this Agreement.
4.4 Stay Bonus
Employee shall receive a one-time bonus equal to three months' base salary
(net of applicable withholding) if Employee is employed by Employer on the
earlier of (i) December 1, 2001 and (ii) the date on which Employer hires a new
President and Chief Executive Officer (the "Primary Stay Bonus"); provided, that
in the event Employer has not hired a new President and Chief Executive Officer
by December 1, 2001, Employee shall receive an additional one-time bonus equal
to three months' base salary (net of applicable withholding) if Employee is
employed by Employer on the date on which Employer does hire a new President and
Chief Executive Officer ("Additional Stay Bonus").
5. BENEFITS, OUTPLACEMENT AND OTHER SERVICES
5.1. Benefits
During the term of this Agreement, Employee will be entitled to
participate, subject to and in accordance with applicable eligibility
requirements, in fringe benefit programs as shall be provided from time to time
by, to the extent required, action of Employer's Board of Directors.
5.2. Outplacement and Other Services
In the event of a termination without Cause or for Good Reason hereunder,
Employee shall be provided with outplacement services by the Xxx Xxxxx Xxxxxxxx
firm in an amount
________________________________________________________________________________
2
not to exceed Five Thousand Dollars ($5,000). Such services will be evidenced by
appropriate invoices and billed directly to Employer. Employee shall receive
reimbursement for professional tax planning services in an amount not to exceed
the cost of four (4) hours of such services in addition to the fifteen (15)
hours already authorized by the Compensation Committee of the board for option
exercise tax planning strategy services for members of the senior management
team.
6. TERMINATION
Employment of Employee pursuant to this Agreement may be terminated as
follows, but in any case, the provisions of paragraph 8 hereof shall survive the
termination of this Agreement and the termination of Employee's employment
hereunder:
6.1. By Employer
With or without Cause (as defined below), Employer may terminate the
employment of Employee at any time during the term of employment upon giving
Notice of Termination (as defined below).
6.2. By Employee
Employee may terminate her employment at any time, for any reason, upon
giving Notice of Termination.
6.3. Automatic Termination
This Agreement and Employee's employment hereunder shall terminate
automatically upon the death or total disability of Employee. The term "total
disability" as used herein shall mean Employee's inability to perform the duties
set forth in paragraph 1 hereof for a period or periods aggregating 180 calendar
days in any 12-month period as a result of physical or mental illness, loss of
legal capacity or any other cause beyond Employee's control, unless Employee is
granted a leave of absence by the Employer. Employee and Employer hereby
acknowledge that Employee's ability to perform the duties specified in paragraph
1 hereof is of the essence of this Agreement. Termination hereunder shall be
deemed to be effective (a) at the end of the calendar month in which Employee's
death occurs or (b) immediately upon a determination by the Employer of
Employee's total disability, as defined herein.
6.4. Notice
The term "Notice of Termination" shall mean at least 30 days' written
---------------------
notice of termination of Employee's employment, during which period Employee's
employment and performance of services will continue; provided, however, that
-------- -------
Employer may, upon notice to Employee and without reducing Employee's
compensation during such period, excuse Employee from any or all of her duties
during such period. The effective date of the termination of Employee's
employment hereunder shall be the date on which such 30-day period expires.
________________________________________________________________________________
3
7. TERMINATION PAYMENTS
In the event of termination of the employment of Employee, all compensation
and benefits set forth in this Agreement shall terminate except as specifically
provided in this paragraph 7:
7.1. Termination by Employer
(i) If Employer terminates Employee's employment without Cause prior
to the date on which Employer hires a new President and Chief Executive Officer,
Employee shall be entitled to receive (a) termination payments equal to nine (9)
months' annual base salary and (i) two times (2x) the amount of the Primary Stay
Bonus in the event Employee's employment is terminated effective prior to
December 1, 2001 or (ii) two times (2x) the amount of the Secondary Stay Bonus
in the event Employee's employment is terminated effective after December 1,
2001 and prior to the date on which Employer hires a new President and Chief
Executive Officer, 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. Such payment shall be provided in equal monthly installments,
less applicable deductions and tax withholding, at regular payroll intervals.
Employer agrees to continue Employee's health insurance benefits, including
current dependent coverage, for nine (9) months following the date the Employee
is terminated without Cause. Thereafter Employee may self-pay health insurance
under COBRA if she elects to do so. All other Employer benefits cease on the
date of termination without Cause. If Employee is terminated by Employer for
Cause, Employee shall not be entitled to receive any of the foregoing benefits,
other than those set forth in clause (b) above.
(ii) If Employer terminates Employee's employment without Cause after
the date on which the Employer hires a new President and Chief Executive Officer
and prior to the end of the term of this Agreement, Employee shall be entitled
to receive (a) termination payments equal to (i) nine (9) months' annual base
salary in the event of such termination prior to April 1, 2002, or (ii) six (6)
months' annual base salary for any such termination thereafter, 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. Such payment
shall be provided in equal monthly installments, less applicable deductions and
tax withholding, at regular payroll intervals. Employer agrees to continue
Employee's health insurance benefits, including current dependent coverage, for
(i) nine (9) months if Employee is terminated without Cause after the date on
which the Employer hires a new President and Chief Executive Officer and prior
to April 1, 2002, or (ii) six (6) months if Employee is terminated without Cause
thereafter. Thereafter Employee may self-pay health insurance under COBRA if she
elects to do so. All other Employer benefits cease on the date of termination
without Cause. If Employee is terminated by Employer for Cause, Employee shall
not be entitled to receive any of the foregoing benefits, other than those set
forth in clause (b) above. In the event Employee obtains other employment during
any salary continuation period hereunder following a termination without Cause
or for Good Reason,
________________________________________________________________________________
4
Employer's obligation shall be offset by the amount of salary or pay received
from such other employment.
7.2. Termination by Employee
In the case of the termination of Employee's employment by Employee for
other than Good Reason, Employee shall not be entitled to any payments
hereunder, other than those set forth in clause (b) of subparagraph 7.1 hereof.
In the case of a termination for Good Reason, Employee shall be entitled to
receive termination payments equal to (i) nine (9) months' annual base salary if
she terminates prior to April 1, 2002, or (ii) six (6) months' annual base
salary if she terminates thereafter, 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. Such payment shall be provided in equal
monthly installments, less applicable deductions and tax withholding, at regular
payroll intervals. Employer agrees to continue Employee's health insurance
benefits, including current dependent coverage, for (i) nine (9) months if
Employee terminates for Good Reason prior to April 1, 2002, or (ii) six (6)
months if Employee terminates for Good Reason thereafter. Thereafter Employee
may self-pay health insurance under COBRA if she elects to do so. All other
Employer benefits cease on the date of termination for Good Reason. For purposes
of this Agreement, "Good Reason" means the occurrence of any of the following
events or conditions and the failure of the Employer to cure such event or
condition within 30 days after receipt of written notice from the Employee:
(a) a change in the Employee's status, position or responsibilities
(including reporting responsibilities) that, in the Employee's
reasonable judgment, represents a substantial reduction in the
status, position or responsibilities as in effect immediately
prior thereto; the assignment to the Employee of any duties or
responsibilities that, in the Employee's reasonable judgment, are
materially inconsistent with such status, title, position or
responsibilities; or any removal of the Employee from or failure
to reappoint or reelect the Employee to any of such positions,
except in connection with the termination of the Employee's
employment for Cause, as a result of his total disability or
death, or by the Employee other than for Good Reason;
(b) a reduction in the Employee's annual base salary;
(c) requiring the Employee (without the Employee's consent) to be
based at any place outside a 50-mile radius of his place of
employment, except for reasonably required travel on the
Employer's business that is not materially greater than such
travel requirements prior to the effective date of this Agreement;
(d) the Employer's failure to (i) continue in effect any material
compensation or benefit plan (or the substantial equivalent
thereof) in which the Employee was participating, or (ii) provide
the Employee with compensation and benefits
________________________________________________________________________________
5
substantially equivalent (in terms of benefit levels and/or reward
opportunities) to those provided for under each material employee
benefit plan, program and practice in effect immediately prior to
the effective date of this Agreement;
(e) any material breach by the Employer of its obligations to the
Employee under this Agreement;
(f) the termination of employment by Employee more than thirty (30)
and less than one-hundred eighty (180) days following the hiring
of a new President and Chief Executive Officer by Employer; or
(g) any purported termination of the Employee's employment or service
relationship for Cause that is not in accordance with the
definition of Cause under this Agreement.
7.3. Expiration of Term
In the case of a termination of Employee's employment as a result of the
expiration of the term of this Agreement, Employee shall not be entitled to
receive any payments hereunder, other than those set forth in clause (b) of
subparagraph 7.1 and any bonus to which Employee may be entitled under
subparagraph 4.2 and 4.4 hereof.
7.4. Payment Schedule
All payments under this paragraph 7 shall be made to Employee at the same
interval as payments of salary were made to Employee immediately prior to
termination.
7.5. Cause
Wherever reference is made in this Agreement to termination being with or
without Cause, "Cause" is limited to the occurrence of one or more of the
-----
following events:
(a) Failure or refusal to carry out the lawful duties of Employee
described in Section 1 hereof or any directions of the Board of Directors of
Employer, which directions are reasonably consistent with the duties herein set
forth to be performed by Employee;
(b) Violation by Employee of a state or federal criminal law involving
the commission of a crime against Employer or a felony;
(c) Current use by Employee of illegal substances; deception, fraud,
misrepresentation or dishonesty by Employee; any act or omission by Employee
which substantially impairs Employer's business, good will or reputation; or
(d) Any other material violation of any provision of this Agreement.
________________________________________________________________________________
6
7.6 Non-payment
In the event of any non-payment by Employer of any amount due under this
paragraph 7 in breach of this Agreement, which breach is not cured by Employer
within 15 days of the date such payment was due, Employee shall be entitled to
an amount equal to twice the amount of the amount which is not paid when due.
8. NONCOMPETITION, NONDISCLOSURE AND NONDISPARAGEMENT
(a) The nature of Employee's employment with Employer has given
Employee access to trade secrets and confidential information, including
information about its technology and customers. Therefore, during the Applicable
Period (as defined below) following termination of employment for whatever
reason, Employee agrees that she will not engage in, be employed by, perform
services for, participate in the ownership, management, control or operation of,
or otherwise be connected with, either directly or indirectly, any business or
activity whose efforts are in competition with (i) the products or services
manufactured or marketed by Employer at the time of this Agreement, or (ii) the
products or services which have been under research or development by Employer
during the term of Employee's employment, and which Employer has demonstrably
considered for further development or commercialization. The geographic scope of
this restriction shall extend to anywhere Employer is doing business, has done
business or intends to do business. Employee acknowledges that the restrictions
are reasonable and necessary for protection of the business and goodwill of
Employer. For purposes of this paragraph 8, "Applicable Period" means (i) nine
(9) months, if Employee's employment terminates prior to April 1, 2002, or (ii)
six (6) months, if Employee's employment terminates on or after April 1, 2002.
If, within the Applicable Period following the date of termination,
Employee violates this paragraph 8, Employee shall forfeit any remaining
termination payments provided under paragraph 7. In addition, the Board may
require that Employee forfeit to Employer any economic value realized upon
exercise of options that were accelerated in connection with the Employee's
termination for Good Reason or without Cause.
(b) Employee further agrees that she will not at any time disclose
confidential information about Employer relating to its business, technology,
practices, products, marketing, sales, services, finances or legal affairs.
(c) Following termination of Employee for any reason, Employee and
Employer shall refrain from making any derogatory comment in the future to the
press or any individual or entity regarding the other that relates to their
activities or relationship prior to the date of termination, which comment would
likely cause material damage or harm to the business interests or reputation of
Employee or Employer. Employee acknowledges that the non-disparagement
provisions of this Section 8(c) are essential to Employer, that Employer would
not enter into this Agreement if it did not include this Section 8(c), and that
damages sustained by Employer as a result of a breach of this Section 8(c)
cannot be adequately
________________________________________________________________________________
7
quantified or remedied by damages alone. Accordingly, Employer shall be entitled
to injunctive and other equitable relief to prevent or curtail any breach of
this Section 8(c).
9. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
Employee represents and warrants that neither the execution nor the
performance of this Agreement by Employee will violate or conflict in any way
with any other agreement by which Employee may be bound, or with any other
duties imposed upon Employee by corporate or other statutory or common law.
10. FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically
refer to this Agreement and shall be personally delivered or sent by telecopy or
other electronic facsimile transmission or by registered or certified mail,
return receipt requested, at the address set forth below or at such other
address as may hereafter be designated by notice given in compliance with the
terms hereof:
If to Employee: Xxxxx Xxxxx
0000 00xx Xxxxxx
Xxxxxxx, XX 00000
If to Employer: Coinstar, Inc.
0000 000/xx/ Xxxxxx XX
Xxxxxxxx, XX 00000
Copy to: Xxxxxxx Coie LLP
Attn: Xxxxxxxxx Xxxxx-Xxxxxx
0000 Xxxxx Xxx., 00xx Xxxxx
Xxxxxxx, XX 00000-0000
If notice is mailed, such notice shall be effective upon mailing, or if notice
is personally delivered or sent by telecopy or other electronic facsimile
transmission, it shall be effective upon receipt.
11. ASSIGNMENT
This Agreement is personal to Employee and shall not be assignable by
Employee. Employer may assign its rights hereunder to (a) any corporation or
other entity resulting from any merger, consolidation or other reorganization to
which Employer is a party or (b) any corporation, partnership, association or
other person to which Employer may transfer all or substantially all of the
assets and business of Employer existing at such time. All of the terms and
provisions of this Agreement shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
________________________________________________________________________________
8
12. WAIVERS
No delay or failure by any party hereto in exercising, protecting or
enforcing any of its rights, titles, interests or remedies hereunder, and no
course of dealing or performance with respect thereto, shall constitute a waiver
thereof. The express waiver by a party hereto of any right, title, interest or
remedy in a particular instance or circumstance shall not constitute a waiver
thereof in any other instance or circumstance. All rights and remedies shall be
cumulative and not exclusive of any other rights or remedies.
13. ARBITRATION
Any controversies or claims arising out of or relating to this Agreement
shall be fully and finally settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect (the "AAA Rules"), conducted by one arbitrator either mutually agreed
---------
upon by Employer and Employee or chosen in accordance with the AAA Rules, except
that the parties thereto shall have any right to discovery as would be permitted
by the Federal Rules of Civil Procedure for a period of 90 days following the
commencement of such arbitration and the arbitrator thereof shall resolve any
dispute which arises in connection with such discovery. The prevailing party
shall be entitled to costs, expenses and reasonable attorneys' fees, and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. This provision shall not preclude Employer from
seeking court enforcement or relief based upon an alleged violation of
Employee's obligations under any noncompetition or non-disclosure agreement.
Prior to the initiation of any arbitration hereunder, the parties shall engage
in mandatory mediation in the interest of expediting a prompt resolution of any
dispute. The Employer shall be responsible for payment of any and all costs and
fees of such mediation, including attorneys' fees for Employee, in an amount not
to exceed Ten Thousand Dollars ($10,000).
14. AVAILABILITY AND CONSULTATION
If Employee's employment with Employer terminates for any reason, Employee
will thereafter make herself reasonably available to Employer and counsel for
Employer for the purpose of enabling Employer to defend against any legal claims
in which Employer determines she may have knowledge or information. Employer
will reimburse Employee for reasonable out-of-pocket expenses incurred in
connection with any consultations under this Section 14.
15 AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure therefrom by either
party hereto, shall in any event be effective unless the same shall be in
writing, specifically identifying this Agreement and the provision intended to
be amended, modified, waived, terminated or discharged and signed by Employer
and Employee, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
________________________________________________________________________________
9
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Employer and Employee.
16 APPLICABLE LAW
This Agreement shall in all respects, including all matters of
construction, validity and performance, be governed by, and construed and
enforced in accordance with, the laws of the state of Washington, without regard
to any rules governing conflicts of laws.
17 SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof, and (c) any court or
arbitrator having jurisdiction thereover shall have the power to reform such
provision to the extent necessary for such provision to be enforceable under
applicable law.
18 HEADINGS
All headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
19 COUNTERPARTS
This Agreement, and any amendment or modification entered into pursuant to
paragraph 14 hereof, may be executed in any number of counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
20 ENTIRE AGREEMENT
Except for (1) [that certain Proprietary Invention and Information
Agreement dated_________], and (2) the continuing rights, amended by paragraph 4
hereof, and obligations under Employee's existing stock option agreements, this
Agreement sets forth the entire understanding between Employee and Employer,
superseding any prior agreements or understandings, express or implied,
pertaining to the terms of Employee's employment with Employer. Employee
acknowledges that in executing this Agreement, she does not rely upon any
representation or statement by any representative or agent of Employer
concerning the subject matter of this Agreement.
________________________________________________________________________________
10
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement on the date set forth above.
COINSTAR, INC.
/s/ M. Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
XXXXX XXXXX Its: Compensation Committee Chair
________________________________________________________________________________
11
