Shutterfly 2009 Annual Report Download - page 113

Exhibit 10.19
A MENDMENT TO O FFER L ETTER
This Amendment to Offer Letter (this “Amendment”)
is entered into as of December 26, 2008, by and between Shutterfly, Inc. (the
“Company”) and Mark Rubash (“you”) (collectively, the “parties”).
This Amendment modifies certain provisions of your offer letter from the
Company dated November 27, 2007 (the “Offer Letter”).
1. Severance . The parties agree that the following provisions shall replace and supersede any provisions of the Offer Letter related to
severance benefits:
Severance
If your employment is terminated by the Company without Cause (as defined below), other than within
twelve (12) months following a Corporate Transaction (as defined in the Plan):
(1) a severance payment in the amount equal to six (6) months of your final base pay rate, and less applicable
withholding taxes and regular deductions, payable in a lump sum (“Severance”);
(2) the post-termination exercise period for your Company stock options will be extended from three (3)
months to twelve (12) months following your termination date; and
(3) if you are covered under the Company’s group health plan as of the termination date and timely elect to
continue your group coverage under COBRA, the Company will reimburse you upon submission of written
proof of premium payment for up to six (6) months of the applicable COBRA premiums as COBRA is
provided in accordance with the terms of the applicable plans and the law, beginning on the first of the
month following the Company’s receipt of your COBRA election notice and ending on the earlier of (i) the
date you become covered under another group or individual health plan, or (ii) the last day of the six-month
period described above. You will be solely responsible for making your premium payments pursuant to
COBRA in order to maintain such coverage, and the Company shall not be responsible for making any direct
payments to any health care or insurance provider on your behalf
Your receipt of the foregoing severance benefits is conditioned on you having first executed, and not
revoked, a general release of claims in favor of the Company (in a form prescribed by the Company) and the
return of all Company property. The Severance will be paid in the form of a lump sum, in accordance with
the Company’s standard payroll procedures, commencing within sixty (60) days following your “separation
from service,” as defined under Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) (subject to a six-month delay if you are a “specified employee” as defined under the Treasury
Regulations under Section 409A of the Code and such delay is required to avoid the penalty taxes that
otherwise may be imposed by Section 409A of the Code). The parties intend that the foregoing Severance be
provided in a manner consistent with Section 1.409A-1(b)(9) of the Treasury regulations such that the
Severance will be exempt from Code Section 409A, and the Offer Letter (as amended) and shall be
administered and operated in conformity with this intention.
“Cause” means your (i) gross negligence or willful misconduct in the performance of your duties after a
notice is delivered to you that specifically identifies the manner in which the Company believes you have
engaged in gross negligence or willful misconduct and you have been provided with thirty (30) days to cure
any alleged gross negligence or willful misconduct in the performance of your duties; (ii) commission of any
act of fraud or material dishonesty with respect to the Company; (iii) conviction of, or plea of guilty or “no
contest” to, a felony or a crime of moral turpitude or dishonesty; (iv) material breach of any proprietary
information and inventions agreement with the Company, including the Employee Invention Assignment and
Confidentiality Agreement, or any other unauthorized use or disclosure of the Company’s confidential
information or trade secrets; or (v) repeated failure to perform the duties reasonably assigned to you after
your receipt of written notification of such failure and a reasonable opportunity to cure such failure, which
shall not be less than thirty (30) days following such notice.
2. Change in Control Benefits . The parties agree that the following provisions shall replace and supersede any provisions of the Offer
Letter related to benefits available in the event of a Corporate Transaction or other change in ownership or control of the Company:
Change in Control Benefits
In the event of your Termination (as defined below), within twelve (12) months following a Corporate
Transaction (as defined in the Plan), you will receive (A) items (1) and (2) of the Severance (on the terms
and conditions provided above) and (B) if the Company’s equity awards are assumed in the Corporate
Transaction, accelerated vesting of the number of your then-unvested Company stock option shares and
restricted stock units that would have vested during the twelve (12) months following the date of such
termination (collectively, the “Change in Control Benefits”). The Change in Control Benefits would be
provided in lieu of any other severance-related benefits for which you may be eligible. Your receipt of the
Change in Control Benefits is conditioned on you having first executed, and not revoked, a general release of