exhibit10-01.htm


    

      Exhibit
10.01




     

    March 20,
2009

     

    Kathryn
Olson

    3 Circle
Avenue

    Mill
Valley, CA 94941

     

    
      	
               
      

            	
              Re:

            	
              Transition
      Agreement

            


    

     

    Dear
Kathryn:

     

    This
letter confirms our agreement about your transition from Shutterfly, Inc.
(the “Company”).

     

    Transition
Period:  Your last day of employment with the Company will be June 5,
2009 (the “Separation Date”).  You are expected to continue working
for the Company on a full-time basis through April 3, 2009.  From
April 4, 2009 until the Separation Date (the “Transition Period”), you will not
be required to report to work, but will perform assigned projects and provide
transitional assistance upon request.  I will provide you with
additional information about these special projects, which are expected to
include:

     

    
      	
              ·  

            	
              Regular
      transition meetings with Jeff
Housenbold

            


    

     

    
      	
              ·  

            	
              Positioning
      – including Brand Qualitative Objectives, Discussion Guide, Implications
      Products & Services and Positioning Statements, Communication
      Briefs

            


    

     

    
      	
              ·  

            	
              Segmentation
      – Target Segment and Implications

            


    

     

    
      	
              ·  

            	
              Photography
      Strategy

            


    

     

    
      	
              ·  

            	
              Q1
      2009 Personnel Reviews

            


    

     

    During
the Transition Period, you will continue to receive your current base salary and
maintain your current coverage under the Company’s group benefit plans, subject
to the terms and conditions of that plan.  Additionally, the
Restricted Stock Units granted to you under the Notice of Restricted Stock Award
dated June 2, 2008, and the incentive stock options and non-qualified stock
options granted to you under the Notice of Stock Option Grant dated
May 31, 2007, will continue to vest during the Transition Period, in
accordance with the applicable Award Agreements and the 2006 Equity Incentive
Plan under which they were granted.  You will remain eligible to
participate in the Company’s quarterly bonus plan for Q1, but will not be
eligible to participate in this Plan in Q2 or thereafter, as participation is
conditioned on active, full-time employment through the regular payment
date.

     

    Separation
Date:  On the Separation Date, you will be paid all outstanding salary
amounts and any accrued, but unused, paid time off.  If you seek
reimbursement of any business expenses, you agree to submit your final expense
reimbursement statement by the Separation Date, along with receipts or other
supporting documentation.  The Company will reimburse valid business
expenses in accordance with its standard expense reimbursement
policies.

     

    Severance
Eligibility:  Following the Separation Date, you will be eligible for
severance benefits in accordance with Section 1 of your Amendment to Offer
Letter dated December 31, 2008, a copy of which is attached as Exhibit A (the
“Amendment”).  The Amendment provides that your receipt of these
severance benefits is conditioned on your execution of a general release of
claims.  A copy of this General Release of Claims is attached as
Exhibit B for your reference.  However, please note that Exhibit B may
be signed no earlier than your Separation Date.

     

    At-Will
Status/Early Termination:  This Transition Agreement does not modify
the at-will nature of your employment with the Company.  However, in
the event the Company finds it necessary to terminate your employment without
Cause (as defined in the Amendment) prior to the Separation Date, the Company
will (1) continue to pay your base salary from the date of such termination
through the Separation Date (the “Early Termination Period”) and (2) if you
timely elect to continue your Company group health plan coverage under COBRA,
the Company will reimburse you upon submission of written proof of premium
payment for your COBRA premiums for the Early Termination Period.

     

    Initial
Release of Claims.  In exchange for these transition benefits, you
completely release the Company, its affiliated, related, parent or subsidiary
entities, and its and their present and former directors, officers, and
employees (the “Released Parties”) from any and all claims you may now have or
have ever had against any of them, including, but not limited to, any claims
arising under Title VII of the Civil Rights Act of 1964, the WARN Act or any
state counterpart, the California Fair Employment and Housing Act, the Age
Discrimination in Employment Act (“ADEA”), or any other claims for violation of
any federal, state, or municipal laws, and any and all claims for attorneys’
fees and costs (the “Released Claims”).1  The
parties intend for this release to be enforced to the fullest extent permitted
by law.  You understand that you are not waiving any right or claim
that cannot be waived as a matter of law, such as workers’ compensation or
unemployment insurance benefits.  The parties also agree that you are
not waiving or releasing any rights under the Amendment, the Notice of
Restricted Stock Award and Award Agreement (Restricted Stock Units) dated June
2, 2008, or the Notice of Stock Option Grant and Stock Option Award Agreement
dated May 31, 2007.

     

    Entire
Agreement.  This Transition Agreement and the Amendment contain all of
our agreements and understandings and fully supersede any prior agreements or
understandings that we may have had regarding your employment with the Company
or its termination, with the exception of the Employee Invention Assignment and
Confidentiality Agreement that you signed as a condition of your
employment.  This Agreement is governed by California law and may be
amended only in a written document signed by you and the Company’s
President.  If any term in this Agreement is unenforceable, the
remainder of the Agreement will remain enforceable.

     

    Consideration
and Revocation Periods.  Please note that you have 21 days to consider
this Agreement (but may sign it earlier if you wish) and that you can consult an
attorney in doing so.  In addition, you can revoke this Agreement
within 7 days of signing it by sending me a certified letter to that
effect.  This Agreement shall not become effective or enforceable
until the 7-day revocation period has expired.

     

    If you
have any questions, please feel free to call me.  We appreciate your
continued assistance during this transition.

     

    

      
        
          	
                  Very
      truly yours,

                  /s/Jeff Housenbold

                  Jeff
      Housenbold

                


        

      

    

    


    


    ACCEPTED
AND AGREED:

    
 

    
      
        
          
            
              
                
                  
                    
                      
                        	 Dated:
      March 25, 2009	 	/s/Kathryn Olson 	 
	 
      	 
      	
                                Kathryn
      Olson

                              	 
      


                      

                    

                  

                

              

            

          

        

      




    

      

    

      
      1 You
agree that because this release specifically covers known and unknown claims,
you waive your rights under Section 1542 of the California Civil Code, or under
any comparable law of any other jurisdiction.  Section 1542
states:  “A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”

       

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
A

     

    

      Amendment
to Offer Letter

      


      This
Amendment to Offer Letter (this “Amendment”) is entered into as of
December 31, 2008, by and between Shutterfly, Inc. (the “Company”) and
Kathryn Olson (“you”) (collectively, the “parties”).  This Amendment
modifies certain provisions of your offer letter from the Company dated May 17,
2007 (the “Offer Letter”).

       

      1. Severance.  The
parties agree that the following provisions shall replace and supersede any
provisions of the Offer Letter related to severance
benefits:

       

      Severance

      If your
employment is terminated by the Company without Cause (as defined below), other
than within twelve (12) months following a Corporate Transaction (as defined in
the Plan):

       

      (1) a
severance payment in the amount equal to six (6) months of your final base pay
rate, and less applicable withholding taxes and regular deductions, payable in a
lump sum (“Severance”);

       

      (2) the
post-termination exercise period for your Company stock options will be extended
from three (3) months to twelve (12) months following your termination date;
and

       

      (3) if you are covered
under the Company’s group health plan as of the termination date and timely
elect to continue your group coverage under COBRA, the Company will reimburse
you upon submission of written proof of premium payment for up to six (6) months
of the applicable COBRA premiums as COBRA is provided in accordance with the
terms of the applicable plans and the law, beginning on the first of the month
following the Company’s receipt of your COBRA election notice and ending on the
earlier of (i) the date you become covered under another group or individual
health plan, or (ii) the last day of the six-month period described above. 
You will be solely responsible for making your premium payments pursuant to
COBRA in order to maintain such coverage, and the Company shall not be
responsible for making any direct payments to any health care or insurance
provider on your behalf.

       

      Your receipt of the
foregoing severance benefits is conditioned on you having first executed, and
not revoked, a general release of claims in favor of the Company (in a form
prescribed by the Company) and the return of all Company
property.  The Severance will be paid in the form of a lump sum, in
accordance with the Company’s standard payroll procedures, commencing within
sixty (60) days following your “separation from service,” as defined under
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
(subject to a six-month delay if you are a “specified employee” as defined under
the Treasury Regulations under Section 409A of the Code and such delay is
required to avoid the penalty taxes that otherwise may be imposed by Section
409A of the Code).  The parties intend that the foregoing Severance be
provided in a manner consistent with Section 1.409A-1(b)(9) of the Treasury
regulations such that the Severance will be exempt from Code Section 409A, and
the Offer Letter (as amended) and shall be administered and operated in
conformity with this intention.

       

      “Cause” means your (i)
gross negligence or willful misconduct in the performance of your duties after a
notice is delivered to you that specifically identifies the manner in which the
Company believes you have engaged in gross negligence or willful misconduct and
you have been provided with thirty (30) days to cure any alleged gross
negligence or willful misconduct in the performance of your duties; (ii)
commission of any act of fraud or material dishonesty with respect to the
Company; (iii) conviction of, or plea of guilty or “no contest” to, a felony or
a crime of moral turpitude or dishonesty; (iv) material breach of any
proprietary information and inventions agreement with the Company, including the
Employee Invention Assignment and Confidentiality Agreement, or any other
unauthorized use or disclosure of the Company’s confidential information or
trade secrets; or (v) repeated failure to perform the duties reasonably assigned
to you after your receipt of written notification of such failure and a
reasonable opportunity to cure such failure, which shall not be less than thirty
(30) days following such notice.

       

      2. Change
in Control Benefits.  The
parties agree that the following provisions shall replace and supersede any
provisions of the Offer Letter related to benefits available in the event of a
Corporate Transaction or other change in ownership or control of the
Company:

       

      Change
in Control Benefits

      In the event of your
Termination (as defined below), within twelve (12) months following a Corporate
Transaction (as defined in the Plan), you will receive (A) items (1) and (2) of
the Severance (on the terms and conditions provided above) and (B) if the
Company’s equity awards are assumed in the Corporate Transaction, accelerated
vesting of the number of your then-unvested Company stock option shares and
restricted stock units that would have vested during the twelve (12) months
following the date of such termination (collectively, the “Change in Control
Benefits”).  The Change in Control Benefits would be provided in lieu
of any other severance-related benefits for which you may be
eligible.  Your receipt of the Change in Control Benefits is
conditioned on you having first executed, and not revoked, a general release of
claims in favor of the Company (in a form prescribed by the Company) and the
return of all Company property.

       

      “Termination” means (a) a
termination of your employment by the Company or its successor without Cause or
(b) your resignation within three (3) months following an event constituting
Good Reason, provided that you have given written notice to the Company of such
event within forty-five (45) days of its occurrence and the Company has failed
to cure such event within thirty (30) days following receipt of such
notice.  For purposes of this paragraph, “Good Reason” means (i) a
material reduction or change in your duties and responsibilities as in effect
immediately prior to the Corporate Transaction; (ii) the relocation of the
Company’s corporate office at which you work by more than fifty (50) miles from
its location immediately prior to such Corporate Transaction, which materially
increases your commuting distance or (iii) a material reduction in your annual
compensation, including base salary and bonus.

       

      3. Miscellaneous.  This
Amendment, together with the Offer Letter (as amended) and other agreements
referenced therein, contain the entire agreement between you and the Company
concerning your employment with the Company, and supersede any previous
agreements or understandings, whether written or oral.  The parties
acknowledge and agree that this Amendment does not affect the at-will nature of
your employment relationship with the Company.  This Amendment may be
amended solely in a written document executed on behalf of both
parties.

       

      IN
WITNESS WHEREOF, the parties hereby execute this Amendment to Offer Letter as of
the date first above written.

       

      
        	
                SHUTTERFLY,
      INC.

                By:   /s/Jeff
      Housenbold                                                           

                Jeff Housenbold

                President & CEO

              	
                /s/Kathryn
      Olson

                Kathryn Olson

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    
 

    EXHIBIT
B

     

    GENERAL
RELEASE OF CLAIMS

     

    This
General Release of Claims is executed by Kathryn Olson (“you”), in accordance
with your Amendment to Offer Letter with Shutterfly, Inc., dated
December 31, 2008 (the “Amendment”).

     

         In
return for the severance benefits set forth in Section 1 of the Amendment, you
hereby release Shutterfly, Inc., its affiliated, related, parent or subsidiary
corporations, and its and their present and former directors, officers, and
employees (the “Released Parties”) from all claims of any kind, known and
unknown,2 which you may now
have or have ever had against any of them, or arising out of your relationship
with any of them, including all claims arising from your employment or the
termination of your employment, whether based on contract, tort, statute, local
ordinance, regulation or any comparable law in any jurisdiction (“Released
Claims”).  By way of example and not in limitation, the Released
Claims shall include any claims arising under Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, the Worker Adjustment and
Retraining Notification Act, the Age Discrimination in Employment Act, and the
California Fair Employment and Housing Act, or any other comparable state or
local law, as well as any claims asserting wrongful termination, breach of
contract, breach of the covenant of good faith and fair dealing, negligent or
intentional misrepresentation, and defamation and any claims for attorneys’
fees.  The parties intend for this release to be enforced to the
fullest extent permitted by law.  You understand that you are not
waiving any right or claim that cannot be waived as a matter of law, such as
workers' compensation or unemployment insurance
benefits.  Additionally, you are not waiving or releasing your rights
to severance benefits in accordance with the Amendment or your right to exercise
any vested Restricted Stock Units granted to you under the Notice of Restricted
Stock Award and Award Agreement (Restricted Stock Units) dated
June 2, 2008, or any vested stock options granted to you under the
Notice of Stock Option Grant and Stock Option Award Agreement dated May 31,
2007.

     

        You
agree not to file or initiate any lawsuit concerning the Released
Claims.  You understand that this paragraph does not prevent you from
filing a charge with or participating in an investigation by a governmental
administrative agency; provided, however, that you hereby waive any right to
receive any monetary award resulting from such a charge or
investigation.

     

        You
acknowledge that the release of claims under the Age Discrimination in
Employment Act (“ADEA”) is subject to special waiver
protection.  Therefore, you acknowledge the following:  (a)
you have had 21 days to consider this General Release of Claims (but may sign it
at any time beforehand if you so desire); (b) you can consult an attorney in
doing so; (c) you can revoke this General Release of Claims within seven (7)
days of signing it by sending a certified letter to that effect to Peter Navin
at 2800 Bridge Parkway, Redwood City CA 94065; and that (d) this General
Release of Claims shall not become effective or enforceable and no severance
benefits shall be provided until the 7-day revocation period has
expired.

     

        The
parties agree that this General Release of Claims and the Amendment contain all
of our agreements and understandings with respect to their subject matter, and
may not be contradicted by evidence of any prior or contemporaneous
agreement.  This General Release of Claims shall be governed by the
laws of the State of California.  If any provision of this General
Release of Claims or its application to any person, place, or circumstance is
held by a court of competent jurisdiction to be invalid, unenforceable, or void,
the remainder of this General Release of Claims and such provision as applied to
other person, places, and circumstances will remain in full force and
effect.

     

    Please note
that this General Release of Claims may be signed no earlier than the Separation
Date, and that your eligibility for severance benefits is conditioned upon
meeting the terms set forth in the Amendment.

     

    


    


    /s/Kathryn
Olson                                                                                 Date:  March 25,
2009

    Kathryn
Olson

    


    


    

      

    

     

      2 You further agree that
because this Release Certificate specifically covers known and unknown claims,
you waive your rights under Section 1542 of the California Civil Code or under
any other comparable law of another jurisdiction that limits a general release
to claims that are known to exist at the date of this
release.  Section 1542 of the California Civil Code states as
follows:  “A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor.”