CONFIDENTIAL TREATMENT REQUESTED.
CERTAIN PORTIONS OF THIS DOCUMENT HAVE
BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND,
WHERE
APPLICABLE, HAVE BEEN MARKED WITH AN ASTERISK TO DENOTE WHERE
OMISSIONS HAVE
BEEN MADE. THE CONFIDENTIAL MATERIAL HAS BEEN FILED SEPARATELY WITH
THE
SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT,
made as of September 15, 2005, between ShutterFly, Inc.
(“Customer”) and Fuji Photo Film U.S.A., Inc.
(“Fuji”).
WHEREAS,
Fuji distributes photographic products, including minilabs and
digital equipment (“Equipment”), standard grade color
paper (“Paper”) and processing chemistry
(“Chemistry”); and
WHEREAS,
Customer desires to purchase and Fuji desires to provide all of
Customer’s in-house requirements for Paper exclusively from
Fuji, and to purchase Equipment and Chemistry on the terms set
forth in this agreement solely for use in Customer’s retail
web-based operations for the term hereof; and
NOW,
THEREFORE, Customer and Fuji hereby agree as follows:
1.1 This agreement
shall be in effect for two (2) years, commencing
September 15, 2005 (the “Term”).
1.2 This agreement
may be terminated prior to expiration of the Term as
follows:
(a) Upon
any of the following events either party may give notice of
termination, effective immediately: (i) the other party
becomes insolvent or admits its inability to pay its debts
generally as they come due; (ii) any sheriff, marshall,
custodian, trustee or receiver is appointed by order of any court
of competent jurisdiction to take charge of or sell any material
portion of the other party’s property; (iii) a case is
filed by the other party under the Bankruptcy Code or any other
insolvency law; (iv) a case is filed against the other party
without such party’s application or consent under the
Bankruptcy Code or any other insolvency law and such case continues
undismissed for 90 days; (v) the other party makes a
general assignment for the benefit of creditors; or (vi) the
other party is dissolved or liquidated or takes any corporate
action for such purpose; or
(b) Either
party may terminate this agreement if the other shall commit a
material breach of this agreement and such breach shall continue
more than thirty (30) days after written notice of such breach
is given to breaching party.
2.
Products; Pricing . Customer shall purchase from Fuji or its
affiliates all of Customer’s in-house requirements for Paper
(except where Paper is not reasonably compatible
1
with
Customer’s processor or if Fuji is not able to fulfill
Customer’s requirements) consistent with the pricing terms
below. Additionally, Customer may purchase Chemistry and may
purchase or lease Equipment from ORIX USA Corporation
(“ORIX”), at its option. Customer shall use Paper and
Chemistry internally and shall not resell same. This Agreement [*];
accordingly, this Agreement [*] [*] Fuji paper.
2.1 Customer shall
purchase Paper [*] the applicable list price, and shall [*] and
mailed to Customer’s billing address. The parties acknowledge
that list price and [*] may change from time to time, but
Customer’s [*] pricing will remain equivalent to the [*]
pricing offered upon execution of this agreement.
In
exchange for Customer’s best efforts [*] on Customer’s
[*], Customer shall [*] to Customer [*] and mailed to
Customer’s billing address.
2.2 [*]:
(a) For optimized truckload lot size shipments of 4 inch x
1750 foot rolls of bulk Paper in production pallets of same surface
from Fuji USA’s manufacturing facility to Customer’s,
Redwood City, CA, there shall [*]. (b) For optimized truckload
lot size shipments of
