a20180615fitbitconsultin






              199 Fremont Street, 14th Floor  info@fitbit.com  San Francisco, CA 94105  www.fitbit.com                        June 15, 2018    William Zerella   [Address]       RE:  Consulting Agreement    Dear Bill:           This letter agreement (this “Agreement”) sets forth the terms and conditions whereby you   agree  to  provide  certain consulting services  to Fitbit,  Inc.,  a  Delaware  corporation  (the   “Company”).     1.    SERVICES          1.1   The Company hereby engages you, and you hereby accept such engagement, as an   independent contractor, to provide certain services to the Company and its affiliates on the terms   and conditions set forth in this Agreement following the effective date of your resignation as the   Company’s Chief Financial Officer.            1.2   You shall provide the services to the Company as requested by the Company from   time to time (the “Services”).  Such Services shall not be less than ten (10) hours in total.            1.3   You will be an independent contractor.  The Company will not control the manner   or means by which you perform the Services.  Unless otherwise agreed in writing, you will furnish,   at your own expense, the equipment, supplies and other materials used to perform the Services.    The Company will provide you with access to its premises and equipment to the extent necessary   for the performance of the Services.  To the extent you perform any Services on the Company’s   premises or using the Company’s equipment, you will comply with all applicable policies of the   Company relating to business and office conduct, health and safety and use of the Company’s   facilities, supplies, information technology, equipment, networks and other resources.       2.    TERM          The  term  of  this  Agreement  shall  commence on  June  16,  2018  (the  “Commencement   Date”) and will continue through September 15, 2018, unless extended or earlier terminated in   accordance with paragraph 10.1 (the “Term”).  Any extension of the term will be subject to mutual   written agreement between the parties.      3.    FEES AND EXPENSES          3.1   As full compensation for the Services and the rights granted to the Company in this   Agreement, the Company shall:         





 






                                                                                            (a)   Pay you a rate of $375 per hour; provided however, that the Company will  pay you no less than a total of $3,750 for the Services you provide during the Term.  Additionally,  you shall not provide more than ten (10) hours of service per month, without the Company’s prior  written approval. The Company will pay such fees within thirty (30) days of the Company’s receipt  of an undisputed invoice from you.                 (b)   Permit any vested options to be exercised through the date 90 days or three  months after the end of Term (as applicable as set forth in such equity grant) or such longer period  as set forth in such equity grant upon your death or Disability pursuant to the terms of such grants  with any incentive stock options under the Company’s Amended and Restated 2007 Stock Plan  ceasing  to  be  incentive  stock  options  if  they  are  not  exercised  within  90  days  following  your  termination as an employee.           3.2   Within ten days following the Commencement Date as additional consideration for  your agreeing to enter into this Agreement, the Company will grant you 15,833 restricted stock  units  under  the  Company’s  2015  Equity  Incentive  Plan,  which  shall  be  fully  vested  upon  the  Commencement Date.  Such restricted stock units will be settled by the Company no later than  June 23, 2018.         3.3   You acknowledge that notwithstanding any provisions in the Company’s equity  plans or in any arrangement with the Company to the contrary, the vesting of any unvested equity  awards held by you (not including the restricted stock units awarded to you pursuant to Section  3.2 above) shall terminate and such unvested awards shall be forfeited to the Company on the  Commencement Date.         3.4   You  acknowledge  that  you  will  receive  an  IRS  Form  1099-MISC  from  the  Company, and that you shall be solely responsible for all federal, state and local taxes on your  monthly consulting payments and the restricted stock units granted to you pursuant to Section 3.2  above.   The  Company  shall  withhold  on  any  nonqualified  stock  options  exercised  and  other  restricted stock units settled on or after the Commencement Date, in either case, if granted prior to  the Commencement Date.   4.    RELATIONSHIP OF THE PARTIES           4.1   You are an independent contractor of the Company, and this Agreement shall not  be construed to create any association, partnership, joint venture, employee or agency relationship  between you and the Company for any purpose.  Other than as approved by the Chief Executive  Officer of the Company, you have no authority (and shall not hold yourself out as having authority)  to bind the Company and you shall not make any agreements or representations on the Company’s  behalf without the Company’s prior written consent.           4.2   Without  limiting  paragraph  4.1,  you  will  not  be  eligible  to  participate  in  any  vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any  other fringe benefits or benefit plans offered by the Company to its employees, and the Company  will not be responsible for withholding or paying any income, payroll, Social Security or other  federal,  state  or  local  taxes,  making  any  insurance  contributions,  including  unemployment  or   disability, or obtaining worker’s compensation insurance on your behalf.  You shall be responsible  for, and shall indemnify the Company against, all such taxes or contributions, including penalties  and interest.  Any persons employed or engaged by you in connection with the performance of the                                         2    





 






                                                                                Services shall be your employees or contractors and you shall be fully responsible for them and  indemnify the Company against any claims made by or on behalf of any such employee and/or  contractor.     5.    INTELLECTUAL PROPERTY RIGHTS           5.1   You agree that any and all deliverables shall be the sole and exclusive property of  Company. You will and hereby do irrevocably assign to Company all right, title and interest in  and to the deliverables and all related intellectual property rights.           5.2   Any assignment of copyrights under this Agreement includes all rights of paternity,  integrity, disclosure and withdrawal and any other rights that may be known as “moral rights”  (collectively,  “Moral  Rights”). You  hereby  irrevocably  waive,  to  the  extent  permitted  by  applicable law, any and all claims you may now or hereafter have in any jurisdiction to any Moral  Rights.           5.3   You  will  and  hereby  are  obligated  to  make  full  and  prompt  disclosure  to  the  Company of any inventions or processes, as such terms are defined in 35 U.S.C. § 100 (the “Patent  Act”),  made  or  conceived  by  you  alone  or  with  others  during  the  Term,  whether  or  not  such  inventions  or  processes  are  patentable  or  protected  as  trade  secrets  and  whether  or  not  such  inventions or processes are made or conceived during normal working hours or on the premises of  the Company.  You shall not disclose to any third party the nature or details of any such inventions  or processes without the prior written consent of the Company.           5.4   Upon the request of the Company, you shall promptly take such further actions,  including  execution  and  delivery  of  all  appropriate  instruments  of  conveyance,  as  may  be  necessary to assist the Company to prosecute, register, perfect, record or enforce its rights in any  Moral Rights.  In the event the Company is unable, after reasonable effort, to obtain your signature  on any such documents, you hereby irrevocably designate and appoint the Company as your agent  and attorney-in-fact, to act for and on your behalf solely to execute and file any such application  or other document and do all other lawfully permitted acts to further the prosecution and issuance  of patents, copyrights or other intellectual property protected related to the Moral Rights with the  same legal force and effect as if you had executed them.  You agree that this power of attorney is  coupled with an interest.           5.5   You have no right or license to use the Company’s trademarks, service marks, trade  names, trade names, logos, symbols or brand names.     6.    CONFIDENTIALITY          6.1   You  acknowledge  that  you  will  have  access  to  information  that  is  treated  as  confidential and proprietary by the Company, whether spoken, written, printed, electronic or in  any other form or medium (collectively, the “Confidential Information”).  You agree, consistent  with your other obligations to the Company and its affiliates, to treat all Confidential Information  as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in  whole or part, to any third party without the prior written consent of the Company in each instance,  and not to use any Confidential Information for any purpose except as required in the performance  of the Services.  You will notify the Company immediately in the event you become aware of any  loss or disclosure of any Confidential Information.  You understand and acknowledge that your                                         3    





 






                                                                                obligations  under  this  Agreement  or  otherwise  with  regard  to  any  particular  Confidential  Information  commence  immediately  and  shall  continue  in perpetuity,  notwithstanding  the  termination of this Agreement, until such time as such Confidential Information has been disclosed  publicly by the Company.           6.2   You  acknowledge  and  agree  that  during  the  Term,  you  will  not  engage  in  any  activity that could reasonably be expected to result in a breach of any covenant or agreement you  have with the Company. You further acknowledge and agree that this Agreement does not and will  not result in a breach of any covenant or agreement you have with another party for the provision  of services by you.         6.3   Pursuant to the Defend Trade Secrets Act (18 U.S.C. § 1833(b)), you acknowledge  that you understand that you will not be held criminally or civilly liable under any federal or state  trade secret law for the disclosure of a trade secret of the Company or its affiliates that (i) is made  (A) in confidence to a federal, state, or local government official, either directly or indirectly, or  to your attorney and (B) solely for the purpose of reporting or investigating a suspected violation  of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other  proceeding.  You further acknowledge that you understand that if you file a lawsuit for retaliation  for reporting a suspected violation of law, you may disclose the trade secret to your attorney and  use the trade secret information in the court proceeding if you (x) file any document containing  the trade secret under seal, and (y) do not disclose the trade secret, except pursuant to court order.   Nothing in this Agreement, or any other agreement with or policy of the Company or its affiliates,  is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets  that  are  expressly  allowed  by  such  section.   Further, nothing  in  this  Agreement  or  any  other  agreement that  you have with  the Company or its  affiliates  shall prohibit or restrict  you from  making any voluntary disclosure of information or documents concerning possible violations of  law to, or seek a whistleblower award from, any governmental agency or legislative body, or any  self-regulatory organization, in each case, and you may do so without notifying the Company.   7.    REPRESENTATIONS AND WARRANTIES           7.1   The Company hereby represents and warrants to you that it has the full right, power  and authority to enter into this Agreement and to perform its obligations hereunder.          7.2   You will ensure that the Services (including all deliverables) and your performance  of its obligations under this Agreement are in compliance at all times with all applicable foreign,  federal, state and local laws, statutes, ordinances, orders, regulations and other legal obligations.   You hereby represent and warrant to the Company that you have the full right and power to enter  into this Agreement and to perform your obligation hereunder without the consent of any third  party.      8.    INDEMNIFICATION                                            4    





 






                                                                                      8.1   You shall defend, indemnify and hold harmless the Company and its affiliates and  their officers, directors, employees, agents, successors and assigns from and against all losses,  damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or  expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from:                 (a)   bodily injury, death of any person or damage to real or tangible, personal  property resulting from your acts or omissions; and                 (b)   your  breach  of  this  Agreement,  including,  without  limitation,  any  representation, warranty or obligation.     9.    RELEASE            9.1   In exchange for the consideration provided in this Agreement, you and your heirs,  executors, administrators and assigns  (collectively  the “Releasors”) forever waive,  release and  discharge  the  Company,  its  current  and  former  officers,  directors,  shareholders,  corporate  affiliates,  subsidiaries,  insurers,  attorneys,  successors  and  assigns,  agents,  subscribers  and  employees (each in their individual and corporate capacities) (collectively, “Releasees”), from any  and all claims, demands, causes of actions, fees, damages, liabilities and expenses (inclusive of  attorneys’  fees)  of  any  kind  whatsoever,  whether  known  or  unknown,  that  you  have  ever  had  against  the Releasees by  reason  of  any  actual  or  alleged  act,  omission,  transaction,  practice,  conduct,  occurrence  or  other  matter  up  to  and  including  the  date  of  your  execution  of  this  Agreement, including, but not limited to (i) any claims under Title VII of the Civil Rights Act, as  amended, the Americans with Disabilities Act, as amended, the Family and Medical Leave Act, as  amended, the Fair Labor Standards Act, the Equal Pay Act, as amended, the Employee Retirement  Income Security Act, as amended (with respect to unvested benefits), the Civil Rights Act of 1991,  as amended, Section 1981 of U.S.C. Title 42, the Sarbanes-Oxley Act of 2002, as amended, the  Worker  Adjustment  and  Retraining  Notification  Act,  as  amended,  the  Uniform  Services  Employment  and Reemployment  Rights  Act,  as  amended,  ALL  STATE  AND  LOCAL  STATUTES  THAT  MAY  BE  LEGALLY  WAIVED  THAT  EMPLOYEES  COULD  BRING  EMPLOYMENT  CLAIMS  UNDER,  INCLUDING  ANY  STATE  OR  LOCAL  ANTI- DISCRIMINATION STATUTE, WAGE AND HOUR STATUTE, LEAVE STATUTE, EQUAL  PAY STATUTE AND WHISTLEBLOWER STATUTE and/or any other Federal, state or local  law (statutory, regulatory or otherwise) that may be legally waived and released and (ii) any tort  and/or  contract  claims,  including  any  claims  of  wrongful  discharge,  defamation,  emotional  distress,  tortious  interference  with  contract,  invasion  of  privacy,  nonphysical  injury,  personal  injury or sickness or any other harm.  However, this general release of claims excludes the filing  of an administrative charge or complaint with the Equal Employment Opportunity Commission or  other administrative agency, although you waive any right to monetary relief related to such a  charge.  Nothing in this Agreement, or any other agreement with or policy of the Company or its  affiliates, is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade  secrets that are expressly allowed by such section.  Further, nothing in this Agreement or any other  agreement  that  you have with  the Company or its  affiliates  shall prohibit or restrict  you from  making any voluntary disclosure of information or documents concerning possible violations of  law to, or seek a whistleblower award from, any governmental agency or legislative body, or any  self-regulatory organization, in each case, and you may do so without notifying the Company.   This general release of claims also excludes any claims made under state workers’ compensation  or unemployment laws, and/or any claims that cannot be waived by law and any rights that you                                         5    





 






                                                                                may have under any indemnification agreement under the Company’s bylaws or other agreements  or under any fiduciary insurance policy.  You and the Company acknowledge that you have read  and understand Section 1542 of the California Civil Code, which reads as follows: “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.” You hereby knowingly, intentionally, and expressly  waive and relinquish all rights and benefits under that section and any law of any jurisdiction of  similar effect with respect to your release of any unknown or unsuspected claims you may have  against the Releasees.     10.   TERMINATION           10.1  The Company may terminate this Agreement, effective immediately upon written  notice to you, at any time with or without reason.           10.2  Upon  expiration  or  termination  of  this  Agreement  for  any  reason,  you  shall  promptly and in no event later than thirty (30) days following such termination:                 (a)   deliver to the Company all hardware, software, tools, equipment or other  materials provided for your use by the Company;                 (b)   deliver  to  the  Company  all  tangible  documents  and  materials  (and  any  copies) containing, reflecting, incorporating or based on the Confidential Information;                 (c)   permanently erase all of the Confidential Information from your computer  systems; and                 (d)   certify  in  writing  to  the  Company  that  you  have  complied  with  the  requirements of this paragraph.           10.3  The terms and conditions of paragraphs 4, paragraph 5, paragraph 6, paragraph 7,  paragraph 8, paragraph 9, paragraph 10, paragraph 13 and paragraph 14 shall survive the expiration  or termination of this Agreement.     11.   OTHER BUSINESS ACTIVITIES           During the Term, you may be engaged or employed in any other business, trade, profession  or other activity that does not place you in a conflict of interest with the Company; provided, that,  during the Term, you shall not be engaged in any business activities that do or may compete with  the business of the Company without the Company’s prior written consent, to be given or withheld  in its sole discretion.     12.   KNOWING AND VOLUNTARY ACKNOWLEDGMENT           12.1  You specifically agree and acknowledge that: (a) you have read this Agreement in  its entirety and understands all of its terms; (b) you have been advised of and have availed yourself  of your right to consult with an attorney prior to executing this Agreement; (c) you knowingly,  freely and voluntarily assent to all of the terms and conditions of this Agreement including, without  limitation,  the  waiver,  release  and  covenants  contained  herein;  (d)  you  are  executing  this                                         6    





 






                                                                                Agreement, including the waiver and release, in exchange for good and valuable consideration in  addition to anything of value to which you are otherwise entitled; and that (e) you understand that  the waiver and release in this Agreement is being requested in connection with the cessation of  your employment with the Company.           12.2  This Agreement shall be effective immediately after you and the Company execute  this Agreement.  Such date shall be the “Effective Date” of this Agreement.  No payments due to  you under this Agreement will be made or begin before the Effective Date.   13.   ASSIGNMENT           You  shall  not  assign  any  rights,  or  delegate  or  subcontract  any  obligations,  under  this  Agreement without the  Company’s prior written consent.  Any assignment  in  violation of the  foregoing shall be deemed null and void.  The Company may freely assign its rights and obligations  under this Agreement at any time.  Subject to the limits on assignment stated above, this Agreement  will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto  and their respective successors and assigns.     14.   MISCELLANEOUS           14.1  You shall not export, directly or indirectly, any technical data acquired from the  Company, or any products utilizing any such data, to any country in violation of any applicable  export laws or regulations.           14.2  All  notices,  requests,  consents,  claims,  demands,  waivers  and  other  communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at  the addresses set forth on the first page of this Agreement (or to such other address that may be  designated by the receiving party from time to time in accordance with this section).  All Notices  shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre- paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or  registered  mail  (in  each  case,  return  receipt  requested,  postage  prepaid).  Except  as  otherwise  provided in this Agreement, a Notice is effective only if (a) the receiving party has received the  Notice and (b) the party giving the Notice has complied with the requirements of this Section.           14.3  This  Agreement,  together  with  any  other  documents  incorporated  herein  by  reference,  and  related  exhibits  and  schedules,  constitutes  the  sole  and  entire  agreement  of  the  parties to this Agreement with respect to the subject matter contained herein, and supersedes all  prior  and  contemporaneous  understandings,  agreements,  representations  and  warranties,  both  written and oral, with respect to such subject matter, including, but not limited to, that certain  Retention Agreement by and between you and the Company dated as of June 15, 2015; provided  that  you  are  bound  and  will  continue  to  be  bound  by  your  obligations  under  your  Employee  Confidential Information and Inventions Agreement (the “IP Agreement”), previously executed  by you.         14.4  This Agreement may only be amended, modified or supplemented by an agreement  in writing signed by each party hereto, and any of the terms thereof may be waived, only by a  written document signed by each party to this Agreement or, in the case of waiver, by the party or  parties waiving compliance.                                           7    





 






                                                                                      14.5  This Agreement shall be governed by and construed in accordance with the internal  laws of the state of Delaware without giving effect to any choice or conflict of law provision or  rule.  Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and  state courts located in San Francisco County, California in any legal suit, action or proceeding  arising out of or based upon this Agreement or the Services provided hereunder.           14.6  If any term or provision of this Agreement is invalid, illegal or unenforceable in  any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or  provision of this Agreement or invalidate or render unenforceable such term or provision in any  other jurisdiction.           14.7  This  Agreement  may  be  executed  in  multiple  counterparts  and  by  facsimile  signature, each of which shall be deemed an original and all of which together shall constitute one  instrument.                                         [SIGNATURE PAGE FOLLOWS]                                          8    





 






199 Fremont St. Floor 14 info@fitbit.com  San Francisco, CA 94105 www.fitbit.com                  If this letter accurately sets forth our understanding regarding the terms of  our arrangement, kindly execute the enclosed copy of this letter and return it to the  undersigned.                                                                                                     Sincerely,                                                 /s/ James Park                                         Chief Executive Officer                                          Fitbit, Inc.                ACCEPTED AND AGREED:          /s/ Bill Zerella                                         9