Shutterfly 2008 Annual Report Download - page 86

4.
No Assignment or Transfer; No Voluntary Participation in Claims
. Employee represents and warrants that there has been no assignment or other transfer of any
interest in any claim that he may have against the Company and agrees to indemnify and hold the Company harmless from any liabilities, claims, demands, damages, costs, expenses
and attorneys’ fees incurred by the Company as a result of any assertion of assignment or transfer.
Employee agrees that he shall not voluntarily participate in any claim, action, complaint, or lawsuit considered or brought against the Company, and that he shall not
encourage or solicit other persons or entities to consider or bring any claim, action, complaint, or lawsuit against the Company, at any time, now or in the future. Nothing in this section
shall prohibit Employee from responding to a valid subpoena or other order of a court or agency with appropriate jurisdiction to compel his response.
5. Review / Revocation Period.
(a) Employee acknowledges and agrees that (i) Employee has read and understands the terms of this Agreement; (ii) Employee has been advised in writing to
consult with an attorney before executing this Agreement; (iii) that Employee has obtained and considered such legal counsel as Employee deems necessary; (iv) that Employee has
been given up to twenty-one (21) days to consider whether or not to enter into this Agreement (although Employee may elect not to use the full 21-day period at Employee’s option);
and (v) that by signing this Agreement, Employee acknowledges that Employee does so freely, knowingly, and voluntarily.
(b) This Agreement shall not become effective or enforceable until the eighth day after Employee signs this Agreement. Employee may revoke Employee’s
acceptance of this Agreement within seven (7) days after the date Employee signs it. Employee’s revocation must be in writing and received by Doug Appleton, Vice President, Legal
at the Company by 5:00 p.m. Pacific Time on the seventh day following his execution of this Agreement in order to be effective. If Employee does not revoke his acceptance within
the seven (7) day period, Employee’s acceptance of this Agreement shall become binding and enforceable on the Effective Date and the benefits described above shall become due and
payable in accordance with Section 2.
6. Confidentiality.
(a) Employee acknowledges and agrees that he shall continue to be bound by and comply with the terms of the proprietary rights, assignment of inventions and/or
confidentiality agreements between the Company and Employee.
(b) Employee agrees that he shall not directly or indirectly disclose any of the terms of this Agreement to anyone other than his immediate family, financial
advisors or legal counsel, except as such disclosure may be required for accounting or tax reporting purposes or as otherwise may be required by law.
(c) Employee understands and agrees that he may not use or disclose the Company’
s confidential and proprietary business information learned in the course of his
employment with the Company for his own benefit or for the benefit of any other person or entity.
7. Return of Employer Property. On or before the Termination Date, Employee will return to the Company, in good working condition, all Company property and
equipment that is in Employee’s possession or control, including, but not limited to, any files, records, computers, computer equipment, passwords, cell phones, credit cards, keys,
programs, manuals, business plans, financial records, and all documents (and any copies thereof) that Employee prepared or received in the course of his employment with the
Company.
8. Non-Disparagement; No Defamation. Company and Employee agree that they will not, at any time in the future, make any critical or disparaging statements about
the other (in the case of Employee, he shall not disparage the Company, its products, services, employees or other agents or representatives), unless such statements are made truthfully
in response to a subpoena or other legal process.
9. Nonsolicitation of Employees and Customers
. Employee agrees that for a period of one (1) year following the Termination Date, he will not, either on his own behalf
or on behalf of another person or entity, by using or disclosing the trade secrets or confidential, proprietary, or business information of the Company: (a) solicit or take away employees,
independent contractors or consultants of the Company for the purpose of hiring them or encouraging them to refrain from working for the Company; or (b) solicit or take away
suppliers or customers of the Company or encourage them to refrain from doing business with the Company. Notwithstanding the foregoing, nothing prevents Employee from
soliciting business from any supplier or customer of the Company that is unrelated to the business conducted by the Company.
10. Attorney’s Fees . In the event of any legal action relating to or arising out of this Agreement, the prevailing party shall be entitled to recover from the losing party its
attorneys’ fees and costs incurred in that action.
11. No Admission of Liability . Employee and the Company understand and acknowledge that this Agreement constitutes a compromise and settlement of disputed
claims. No action taken by the parties hereto, or either of them, either previously or in connection with this Agreement, shall be deemed or construed to be (a) an admission of truth or
falsity of any claims heretofore made or (b) an acknowledgement or admission by either Party of any fault or liability whatsoever to the other party or to any third party.
12. Consult with Attorney . Each party represents that it has been advised of his or its right to consult with an attorney and to seek legal representation of his or its
choosing in the execution of this Agreement, and has carefully read and understands the scope and effect of the provisions of this Agreement. Neither party has relied upon any
representations or statements made by the other party hereto which are not specifically set forth in this Agreement.
13. Miscellaneous
. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations and
agreements, whether written or oral, with the exception of any stock option agreements between the parties and any agreements described in Section 6(a) herein. This Agreement may
be modified or amended only with the written consent of Employee and an authorized officer of the Company, provided, however, that the Company may amend or modify this
Agreement in order to comply with the provisions of Section 409A of the Internal Revenue Code, to the extent applicable. No oral waiver, amendment or modification will be effective
under any circumstances whatsoever.
EMPLOYEE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP
ANY LEGAL CLAIMS HE HAS AGAINST THE PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES THAT HE IS
SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE BENEFITS DESCRIBED HEREIN.
Dated: December 10, 2007
By: /s/ Stephen E. Recht
Stephen E. Recht
Dated: December 10, 2007 SHUTTERFLY, INC.
By: /s/ Jeff Housenbold
Jeff Housenbold, President & CEO