sflyexh10-01.htm


    Exhibit
10.01

     

    August
26, 2008

     

    Stanford
Au

    10536
Manzanita Court

    Cupertino,
CA 95014

    


    
      	
               
      

            	
              Re:

            	
              Transition
      Agreement

            


    

     

    Dear
Stanford:

     

    This
letter confirms our agreement about your departure from Shutterfly, Inc.
(the “Company”), including the severance package that the Company is offering to
you.

     

    Your last
day of employment with the Company will be September 5, 2008 (the “Separation
Date”).  On the Separation Date, you will be paid all outstanding
wages and any remaining accrued but unused PTO.  You also will be
eligible to convert your medical insurance coverage under COBRA, and will
receive information from our plan administrator describing this conversion
election.  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.

     

    Although
it is under no legal obligation to do so, the Company is offering you a
severance payment in the amount of $125,650.00, less all applicable
withholdings, in exchange for the agreements contained in this letter and the
Release Certificate attached as Exhibit A (the “Release
Certificate”).  The Company also will extend the post-termination
exercise period for your vested stock options from three (3) months following
your Separation Date, as provided in Section 2(a) of your Stock Option Award
Agreement, to February 28, 2009.  In addition, if you elect to convert
your medical insurance coverage under COBRA, the Company will reimburse you for
the COBRA premiums required to maintain coverage for you and your qualified
dependents through February 28, 2009.  You will receive this severance
payment within ten (10) days after you return a signed copy of the Release
Certificate to me, provided that you may sign the Release Certificate no sooner
than the Separation Date.  Except for the separation terms proposed in
this letter, you will not be entitled to any compensation, benefits or other
perquisites of employment after today.

     

    In
exchange for this severance package, 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.  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 payments and benefits described above exceed the amount to
which you otherwise are entitled under the Company’s policies and
practices.  You understand and agree that this letter shall be
maintained in strict confidence, and that you shall not disclose any of its
terms to another person, except to your legal counsel, tax advisors or immediate
family, unless required by law.  You further agree not to make or
publish, either orally or in writing, any disparaging statement about the
Released Parties.

     

    Please
return all Company materials in your possession, including keys, by no later
than the Separation Date.  Also, remember that even after your
employment with the Company ends, you must comply with your continuing
obligation to maintain the confidentiality of the Company’s proprietary
information, including your obligations under the Shutterfly Employee Invention
Assignment and Confidentiality Agreement that you signed as a condition of your
employment (the “Confidentiality Agreement”).

     

    This
letter (including the Release Certificate) contains all of our agreements and
understandings and fully supersedes any prior agreements or understandings that
we may have had regarding your employment with the Company or its termination,
with the exception of the Confidentiality Agreement.  The 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.

     

    Please
note that you have 21 days to consider this letter agreement (but may sign it at
any time before hand if you so desire) 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 and the severance payment
will not be provided until the 7-day revocation period has expired.

     

    If you
have any questions, please feel free to call me.  We wish you the best
in your future endeavors.

     

     

    
      	 	
               Very
      truly yours,

               

            
	 
      	 /s/ Jeff
      Housenbold 

              
                Jeff Housenbold

              

            




    


    


    ACCEPTED
AND AGREED:

    


    


    Dated:   August 27,
2008                                           /s/Stanford Au

    

      

    

      
      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

    


     

    RELEASE
CERTIFICATE

     

    In
exchange for the severance payment described in your Transition Agreement with
Shutterfly, Inc. dated August 26, 2008, you completely release Shutterfly, Inc.,
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”).2  This release shall 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.  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 you have 21 days to consider this Release Certificate (but may
sign it at any time before hand if you so desire) and that you can consult an
attorney in doing so.  In addition, you can revoke this Release
Certificate within 7 days of signing it by sending me a certified letter to that
effect.  This Release Certificate shall not become effective or
enforceable and the severance payment will not be provided until the 7-day
revocation period has expired.

     

    


    


          
/s/Stanford
Au                                                                                         Date:  August 27, 2008

             Stanford
Au

    


    

      

    

      
      2 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.”