SHUTTERFLY, INC. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee INDENTURE Dated as of May 20, 2013 0.25% Convertible Senior Notes due 2018Indenture • May 20th, 2013 • Shutterfly Inc • Services-photofinishing laboratories • New York
INDENTURE, dated as of May 20, 2013, between SHUTTERFLY, INC., a Delaware corporation, as issuer (the “Company,” as more fully set forth in Section 1.01) and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee,” as more fully set forth in Section 1.01).
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...Credit Agreement • August 4th, 2016 • Shutterfly Inc • Services-photofinishing laboratories • New York
Exhibit G-1 — Form of U.S. Tax Compliance Certificate for Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes
AGREEMENT AND PLAN OF MERGER among PHOTO HOLDINGS, LLC, a Delaware limited liability company, PHOTO HOLDINGS MERGER SUB, INC., a Delaware corporation, and SHUTTERFLY, INC., a Delaware corporation Dated as of June 10, 2019Merger Agreement • June 10th, 2019 • Shutterfly Inc • Services-photofinishing laboratories • Delaware
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of June 10, 2019 (the “Agreement Date”), by and among Photo Holdings, LLC, a Delaware limited liability company (“Parent”), Photo Holdings Merger Sub, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), and Shutterfly, Inc., a Delaware corporation (the “Company” and, collectively with Parent and Merger Sub, the “Parties” and each a “Party”). Capitalized terms shall have the meaning ascribed to them throughout this Agreement or in Exhibit A.
May 14, 2013Warrant Agreement • May 20th, 2013 • Shutterfly Inc • Services-photofinishing laboratories • New York
This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern.
May 15, 2013Additional Call Option Transaction • May 20th, 2013 • Shutterfly Inc • Services-photofinishing laboratories
This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated May 14, 2013, (the “Offering Memorandum”) relating to the 0.25% Convertible Senior Notes due 2018 (as originally issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued
CREDIT AGREEMENT dated as of August 17, 2017, among SHUTTERFLY, INC., The Lenders and Issuing Banks Party Hereto, and MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and Collateral Agent MORGAN STANLEY SENIOR FUNDING, INC., SUNTRUST...Credit Agreement • August 17th, 2017 • Shutterfly Inc • Services-photofinishing laboratories • New York
CREDIT AGREEMENT, dated as of August 17, 2017 (as amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), among Shutterfly, Inc., a Delaware corporation (the “Borrower”), the Lenders (such term and each other capitalized term used and not otherwise defined herein having the meaning assigned to it in Article 1) and Issuing Banks party hereto from time to time and Morgan Stanley Senior Funding, Inc., as Administrative Agent and Collateral Agent.
May 14, 2013Base Call Option Transaction • May 20th, 2013 • Shutterfly Inc • Services-photofinishing laboratories
This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated May 14, 2013, (the “Offering Memorandum”) relating to the 0.25% Convertible Senior Notes due 2018 (as originally issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued
Amendment to Offer LetterAmendment to Offer Letter • May 3rd, 2010 • Shutterfly Inc • Services-photofinishing laboratories
This Amendment to Offer Letter (this “Amendment”) is entered into as of December 26, 2008, by and between Shutterfly, Inc. (the “Company”) and Dan McCormick (“you”) (collectively, the “parties”). This Amendment modifies certain provisions of your offer letter from the Company dated March 21, 2005 (the “Offer Letter”).
May 15, 2013Call Option Transaction • May 20th, 2013 • Shutterfly Inc • Services-photofinishing laboratories
This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms that are defined in the Offering Memorandum dated May 14, 2013, (the “Offering Memorandum”) relating to the 0.25% Convertible Senior Notes due 2018 (as originally issued by Counterparty, the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued
LEASE AGREEMENT By and Between WESTPORT OFFICE PARK, LLC, a California limited liability company ("Landlord") and SHUTTERFLY, INC., a Delaware corporation ("Tenant") March 18, 2010Lease Agreement • May 3rd, 2010 • Shutterfly Inc • Services-photofinishing laboratories • California
THIS LEASE AGREEMENT, (this "Lease") is made and entered into as of March 18, 2010 ("Effective Date") by and between WESTPORT OFFICE PARK, LLC, a California limited liability company ("Landlord"), and Tenant identified in the Basic Lease Information below.
Shutterfly, Inc. Common Stock, par value $0.0001 per share Underwriting AgreementUnderwriting Agreement • September 12th, 2006 • Shutterfly Inc • Services-photofinishing laboratories • New York
STOCK PURCHASE AGREEMENT dated as of January 30, 2018 by and among Lifetouch Inc. Employee Stock Ownership Trust, Seller, Lifetouch Inc., the Company, and Shutterfly, Inc., as BuyerStock Purchase Agreement • January 30th, 2018 • Shutterfly Inc • Services-photofinishing laboratories • Delaware
THIS STOCK PURCHASE AGREEMENT, dated as of January 30, 2018 (this “Agreement”), is entered into by and among Shutterfly, Inc., a Delaware corporation (“Buyer”), Lifetouch Inc., a Minnesota corporation (the “Company”), and Lifetouch Inc. Employee Stock Ownership Trust (“Seller”).
Amended and Restated Retention AgreementRetention Agreement • February 17th, 2017 • Shutterfly Inc • Services-photofinishing laboratories • California
This Amended and Restated Retention Agreement (the “Agreement”) is entered into as of [__________], 2017, by and between [Executive] (the “Executive”) and Shutterfly, Inc., a Delaware corporation (the “Company”). This Agreement shall be effective as of (i) January 1, 2018 with respect to any Qualifying Termination (the “Qualifying Termination Effective Date”) and (ii) [________], 2017 with respect to any CIC Qualifying Termination (the “CIC Qualifying Termination Effective Date”). For the avoidance of doubt, the Retention Agreement dated [_________], 2016 by and between the Company and the Executive (the “Existing Retention Agreement”) shall remain in full force and effect until the Qualifying Termination Effective Date (subject to earlier termination thereof in accordance with the terms of and conditions of the Existing Retention Agreement).
January 5, 2005 Dear Jeff:Employment Agreement • August 18th, 2006 • Shutterfly Inc • Services-photofinishing laboratories • California
On behalf of the Board of Directors of Shutterfly, Inc. (the “Company”), I am pleased to offer you employment with the Company on the terms set forth in this letter agreement (the “Agreement”).
Re: Transition AgreementTransition Agreement • October 31st, 2008 • Shutterfly Inc • Services-photofinishing laboratories • California
This letter confirms our agreement about your departure from Shutterfly, Inc. (the “Company”), including the severance package that the Company is offering to you.
AMENDMENT NO. 2Supply Agreement • November 6th, 2012 • Shutterfly Inc • Services-photofinishing laboratories
This Amendment No. 2 to the Supply Agreement (the “Amendment”) is made as of August 23, 2012 (“Amendment Effective Date”) by and between Shutterfly, Inc. (“Shutterfly”), a Delaware corporation with offices at 2800 Bridge Parkway, Redwood City, CA 94065 and FUJIFILM North America Corporation (“Fujifilm”), a New York corporation with offices at 200 Summit Lake Drive, Valhalla. New York 10595.
EXECUTION VERSIONIncremental Commitment Agreement • February 14th, 2014 • Shutterfly Inc • Services-photofinishing laboratories • New York
INCREMENTAL COMMITMENT AGREEMENT (this“Agreement”) dated as of December 6, 2013, among the financial institutions executing this Agreement as INCREMENTAL LENDERS (collectively, the “Incremental Lenders”), SHUTTERFLY, INC., a Delaware corporation (the “Borrower”), and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
ContractCredit Agreement • May 13th, 2013 • Shutterfly Inc • Services-photofinishing laboratories • New York
AMENDMENT No. 1 dated as of May 10, 2013 (this “Amendment”), to the Credit Agreement dated as of November 22, 2011 (the “Credit Agreement”), among SHUTTERFLY, INC., a Delaware corporation (the “Borrower”), the LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent, Swing Line Lender and Issuing Bank.
Retention AgreementRetention Agreement • December 28th, 2015 • Shutterfly Inc • Services-photofinishing laboratories • California
This Retention Agreement (the “Agreement”) is entered into as of [December] [__], 2015 (the “Effective Date”), by and between [Executive] (the “Executive”) and Shutterfly, Inc., a Delaware corporation (the “Company”).
July 22, 2001 Dear Jeannine,Employment Agreement • June 29th, 2006 • Shutterfly Inc
On behalf of Shutterfly, Inc. (the “Company”), I am pleased to promote you to the full-time position of Vice President of Engineering reporting to the Company’s Chief Executive Officer. By signing this letter agreement, you confirm to the Company that you have accepted this promotion and it’s effective date of August 1, 2001.
TEMPORARY SUBLEASE, ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT TO ASSIGNMENTTemporary Sublease, Assignment and Assumption of Lease and Consent to Assignment • February 24th, 2009 • Shutterfly Inc • Services-photofinishing laboratories
THIS TEMPORARY SUBLEASE, ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT TO ASSIGNMENT (the “Assignment”) is entered into as of the 7th day of May, 2008 (the “Date of this Assignment”), by, between and among WESTPORT OFFICE PARK, LLC, a California limited liability company (successor to WESTPORT JOINT VENTURE) (“Landlord”); METRICSTREAM, INC., a Delaware corporation (formerly known as “ZAPLET, INC.” and “Firedrop.com”) (“Assignor”); and SHUTTERFLY, INC., a Delaware corporation (the “Assignee”).
Amendment Number 2 to Offer LetterOffer Letter • February 21st, 2012 • Shutterfly Inc • Services-photofinishing laboratories
This Amendment Number 2 to the Offer Letter dated August 30, 2001 (the “Offer Letter”), as amended effective December 30, 2008, by and between you, Peter Elarde, and Shutterfly, Inc. (the “Company”) is effective as of February 16, 2012.
AMENDED AND RESTATED RETENTION AGREEMENTRetention Agreement • April 4th, 2019 • Shutterfly Inc • Services-photofinishing laboratories • California
This Amended and Restated Retention Agreement (the “Agreement”) is entered into and effective as of [ ], 2019, by and between [ ] (the “Executive”) and Shutterfly, Inc., a Delaware corporation (the “Company”). This Agreement supersedes and replaces, in its entirety, that certain Retention Agreement dated [ , ], by and between the Executive and the Company, which earlier Retention Agreement (the “Original Agreement”) shall be of no further force or effect upon the effectiveness hereof.
Amendment to Employment AgreementEmployment Agreement • May 1st, 2009 • Shutterfly Inc • Services-photofinishing laboratories
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”).
INCREMENTAL TERM LOAN AMENDMENTIncremental Term Loan Amendment • April 2nd, 2018 • Shutterfly Inc • Services-photofinishing laboratories
INCREMENTAL TERM LOAN AMENDMENT, dated as of April 2, 2018 (this “Amendment”), to the Credit Agreement, dated as of August 17, 2017 (as amended prior to the date hereof, as amended by this Amendment, and as further amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among SHUTTERFLY, INC., a Delaware corporation (the “Borrower”), the Lenders and Issuing Banks from time to time party thereto, and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, the “Administrative Agent”) and collateral agent (in such capacity, the “Collateral Agent”).
LEASE AGREEMENT LIBERTY COTTON CENTER, LLC Landlord AND SHUTTERFLY, INC. Tenant AT Building 13 Phoenix, Arizona 85040Lease Agreement • October 31st, 2008 • Shutterfly Inc • Services-photofinishing laboratories
THIS LEASE AGREEMENT is made by and between LIBERTY COTTON CENTER, LLC, a Delaware limited liability company (“Landlord”) and SHUTTERFLY, INC., a corporation organized under the laws of Delaware (“Tenant”), and is dated as of the date on which this Lease has been fully executed by Landlord and Tenant (the “Date of this Lease”).
REGISTRATION RIGHTS AGREEMENTRegistration Rights Agreement • April 25th, 2011 • Shutterfly Inc • Services-photofinishing laboratories • Delaware
This Registration Rights Agreement (this “Agreement”) is made and entered into as of April 25, 2011 by and between Shutterfly, Inc., a Delaware corporation (“Parent”), and the individuals and entities listed on Exhibit A attached hereto (each a “Holder” and collectively the “Holders”).
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...Supply Agreement • August 1st, 2007 • Shutterfly Inc • Services-photofinishing laboratories • New York
WHEREAS, Fuji distributes photographic products, including standard and professional color paper (“Paper”), processing chemistry (“Chemistry”) and the equipment set forth on Exhibit A attached hereto (“Equipment”); and
Amendment to Offer LetterOffer Letter Amendment • February 24th, 2009 • Shutterfly Inc • Services-photofinishing laboratories
This Amendment to Offer Letter (this “Amendment”) is entered into as of December 31, 2008, by and between Shutterfly, Inc. (the “Company”) and Kathryn Olson (“you”) (collectively, the “parties”). This Amendment modifies certain provisions of your offer letter from the Company dated May 17, 2007 (the “Offer Letter”).
AGREEMENT OF LEASELease Agreement • August 18th, 2006 • Shutterfly Inc • Services-photofinishing laboratories • California
Tenant agrees to comply with the following rules and regulations, and any subsequent rules or regulations which Landlord may reasonably adopt or modify from time to time. Tenant shall be bound by such rules and regulations to the same extent as if such rules and regulations were covenants of this Lease; and any non-compliance thereof shall constitute grounds for Default under this Lease. Landlord shall not be liable for the non-observance of said rules and regulations by any other tenant.
Amendment Number 3 to Employment AgreementEmployment Agreement • February 21st, 2012 • Shutterfly Inc • Services-photofinishing laboratories
This Amendment Number 3 (the “Amendment”) to the Letter Agreement dated January 5, 2005 (the “Agreement”) by and between you, Jeffrey T. Housenbold, and Shutterfly, Inc. (the “Company”), as amended effective December 8, 2008 and March 12, 2009, is effective as of February 17, 2012 (the “Effective Date”).
FORM OF INDEMNITY AGREEMENTIndemnification Agreement • June 29th, 2006 • Shutterfly Inc • Delaware
This Indemnity Agreement (this “Agreement”), dated as of ___, 2006, is made by and between Shutterfly, Inc., a Delaware corporation (the “Company”), and [___], a director and/or officer of the Company (the “Indemnitee”).
AMENDMENT NUMBER 4 TO EMPLOYMENT AGREEMENT AND TRANSITION AGREEMENTEmployment Agreement • December 1st, 2015 • Shutterfly Inc • Services-photofinishing laboratories • California
This Amendment Number 4 to Employment Agreement and Transition Agreement (this “Amendment and Transition Agreement”) to the Letter Agreement dated January 5, 2005 (the “Agreement”) by and between you, Jeffrey T. Housenbold, and Shutterfly, Inc. (the “Company”), as amended effective December 8, 2008, March 12, 2009, and February 17, 2012, is effective as of November 30, 2015 (the “Effective Date”).
August 30, 2001 Peter ElardeEmployment Agreement • May 1st, 2009 • Shutterfly Inc • Services-photofinishing laboratories
Agreement and Plan of Merger by and among Shutterfly, Inc., Horsley Acquisition Sub I, Inc., Horsley Acquisition Sub II, LLC, Tiny Prints, Inc., and the Stockholder Representative Dated as of March 21, 2011Merger Agreement • March 21st, 2011 • Shutterfly Inc • Services-photofinishing laboratories • Delaware
This Agreement and Plan of Merger (this “Agreement”) is made and entered into as of March 21, 2011 by and among Shutterfly, Inc., a Delaware corporation (“Parent”), Horsley Acquisition Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and Horsley Acquisition Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent (“Sister Sub”), Tiny Prints, Inc., a Delaware corporation (the “Company”), and the Stockholder Representative, for the purposes of Section 6.6 hereof only. Capitalized terms used and not otherwise defined herein have the meanings set forth in Article 8.
