Exhibit 10.4
EMPLOYMENT AGREEMENT
COINSTAR, INC.
and
XXXXXXX X. XXXXX
Dated as of May 5, 2001
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of May 5, 2001,
between Coinstar, Inc., a Delaware corporation ("Employer"), and Xxxxxxx X.
Xxxxx ("Employee");
W I T N E S S E T H:
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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:
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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 Senior Vice-President of Retail Development.
2. ATTENTION AND EFFORT
Employee will devote all of his 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 him, the following compensation:
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EMPLOYMENT AGREEMENT 1
4.1. Base Salary
Employee's compensation shall consist, in part, of an annual base salary of
One Hundred Thirty-Five Thousand Dollars ($135,000) 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 his 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.
5. 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.
6. TERMINATION
Employment of Employee pursuant to this Agreement may be terminated as
follows:
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 his 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
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disability" as used herein shall mean Employee's inability to perform the duties
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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
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EMPLOYMENT AGREEMENT 2
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
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notice of termination of Employee's employment, during which period Employee's
employment and performance of services will continue; provided, however, that
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Employer may, upon notice to Employee and without reducing Employee's
compensation during such period, excuse Employee from any or all of his 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.
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
If Employer terminates Employee's employment without Cause prior to the end
of the term of this Agreement, Employee shall be entitled to receive (a)
termination payments equal to six (6) 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. 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
twelve (12) months following the date the Employee is terminated without Cause.
Thereafter Employee may self-pay health insurance under COBRA if he 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, 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 the lesser of six (6) months' annual base
salary and the annual base salary Employee would have received if his
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EMPLOYMENT AGREEMENT 3
employment had continued until the end of the term of this Agreement. 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 twelve (12) months following the date the Employee is terminated
for Good Reason. Thereafter Employee may self-pay health insurance under COBRA
if he 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 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; or
(f) 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.
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EMPLOYMENT AGREEMENT 4
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 Section
4.2 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
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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 incident materially
compromising Employee's reputation or ability to represent Employer with
the public; 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.
8. NONDISCLOSURE
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 one (1) year following the
termination of employment without Cause or for Good Reason or for the period of
the severance payment, whichever is less, Employee agrees that he will not
divulge any confidential information.
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
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EMPLOYMENT AGREEMENT 5
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 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: Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
If to Employer: Coinstar, Inc.
0000 000/xx/ Xxxxxx XX
Xxxxxxxx, XX 00000
Copy to: Xxxxxxx Coie
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.
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.
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EMPLOYMENT AGREEMENT 6
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
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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.
14. 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
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.
15. 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.
16. 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.
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EMPLOYMENT AGREEMENT 7
17. 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.
18. 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.
19. ENTIRE AGREEMENT
This Agreement on and as of the date hereof constitutes the entire
agreement between Employer and Employee with respect to the subject matter
hereof and all prior or contemporaneous oral or written communications,
understandings or agreements between Employer and Employee with respect to such
subject matter, are hereby superseded and nullified in their entireties.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement on the date set forth above.
COINSTAR, INC.
/s/ Xxxxxxx X. Xxxxx /s/ M. Xxxxx Xxxxx
___________________________ By______________________________
XXXXXXX X. XXXXX Its: Corporate Secretary
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EMPLOYMENT AGREEMENT 8
