Amendment
to Employment Agreement
This Amendment
(the “ Amendment ”) to the Letter
Agreement dated January 5, 2005 (the “
Agreement ”) by and between you, Jeffrey T.
Housenbold, and Shutterfly, Inc. (the “ Company
”), is effective as of December 8, 2008 (the “
Effective Date ”).
Recitals
Whereas
, you and the Company have
previously entered into an Agreement dated as of January 5, 2005,
whereby the Company confirmed your employment upon certain terms
and conditions; and
Whereas
, you and the Company agree it is
advisable to amend the Agreement in order to bring such Agreement
into compliance with Section 409A of the Internal Revenue Code of
1986, as amended, (the “ Code ”) and its
regulations (“ Section 409A
”),
Now,
Therefore , for good and
valuable consideration, the receipt, sufficiency and adequacy of
which is hereby acknowledged, you and the Company hereby agree to
the following changes to the Agreement as follows:
Any capitalized
terms used herein but not defined herein shall have the meanings
ascribed to them in the Agreement.
(1) The
last paragraph of Section 3 is deleted and replaced with the
following:
In the event you terminate employment with the
Company as a result of Involuntary Termination or Termination
without Cause, each as defined below, you may exercise the
outstanding, vested portion of any of your options for Company
common stock during the twenty-four (24) month period commencing on
the date of your termination of employment, provided, however, that
in no event may any option be exercised after its expiration
date. In the event you terminate employment with the
Company as the result of Termination for Disability or your death,
the outstanding, vested portion of any of such options may be
exercised during the twelve (12) month period commencing on the
date of your Termination for Disability or your death, provided,
however, that in no event may any option be exercised after its
expiration date. In the event you terminate employment with the
Company as a result of Voluntary Termination or Termination for
Cause, you may exercise the outstanding, vested portion of any of
such options during the period allowed under the 1999 Stock
Plan.
(2) Section
5(a) is deleted and replaced with the following:
“Good Reason” means your resignation
within three (3) months following a change in your title of
President and CEO or in your reporting to the Board, or a material
reduction in your duties or responsibilities that is inconsistent
with your position, provided, further, that Good Reason shall also
include the circumstance where following a Change of Control, as
defined below, you are not the President and CEO of a successor
entity to the Company following a Change in Control (or otherwise
your duties and responsibilities for such successor entity to the
Company are materially reduced from those described in Section 1
herein as would be applied to the successor entity following a
Change of Control); (ii) a requirement by the Company
tha
