(Mark
One)
|
|
x
|
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
|
For
the quarterly period ended March 31, 2009
|
|
or
|
|
o
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
|
For
the transition period from
to
|
Delaware
|
94-3330068
|
(
State or Other
Jurisdiction of Incorporation or Organization)
|
(IRS
Employer Identification No.)
|
2800
Bridge Parkway
Redwood
City, California
|
94065
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Class
|
Outstanding
at April 28, 2009
|
Common
stock, $0.0001 par value per share
|
25,171,989
shares
|
Page
Number
|
||
Part I - Financial Information
|
||
|
Item 1.
Financial Statements
|
|
|
Consolidated Balance
Sheet
|
1
|
|
Consolidated Income
Statement
|
2
|
|
Consolidated
Statement of Cash Flows
|
3
|
|
Notes to
Consolidated Financial Statements
|
4
|
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations |
12
|
|
|
Item 3.
Quantitative and Qualitative Disclosures About Market Risk
|
20
|
|
Item 4.
Controls and Procedures
|
20
|
Part II - Other Information
|
||
|
Item
1. Legal Proceedings
|
21
|
|
Item
1A. Risk Factors
|
21
|
|
Item
2. Unregistered Sales of Equity Securities And Use of
Proceeds
|
36
|
|
Item
3. Defaults Upon Senior Securities
|
37
|
|
Item
4. Submission of Matters to a Vote of Security
Holders
|
37
|
Item 5. Other Information |
37
|
|
Item 6. Exhibits |
38
|
|
Signatures |
39
|
|
Index to Exhibits | ||
EXHIBIT 10.01 | ||
EXHIBIT 10.02 | ||
EXHIBIT 10.03 | ||
EXHIBIT 10.04 | ||
EXHIBIT 10.05 | ||
EXHIBIT 31.01 | ||
EXHIBIT 31.02 | ||
EXHIBIT 32.01 | ||
EXHIBIT 32.02 | ||
March
31,
2009
|
December
31,
2008
|
|||||||
ASSETS
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$
|
65,874
|
$
|
88,164
|
||||
Accounts
receivable, net
|
3,287
|
5,992
|
||||||
Inventories
|
3,128
|
3,610
|
||||||
Deferred
tax asset, current portion
|
956
|
1,194
|
||||||
Prepaid
expenses and other current assets
|
9,646
|
4,749
|
||||||
Total
current assets
|
82,891
|
103,709
|
||||||
Long-term
investments
|
52,250
|
52,250
|
||||||
Property
and equipment, net
|
47,083
|
48,006
|
||||||
Goodwill
and intangible assets, net
|
14,090
|
14,547
|
||||||
Deferred
tax asset, net of current portion
|
9,971
|
11,877
|
||||||
Other
assets
|
2,754
|
2,417
|
||||||
Total
assets
|
$
|
209,039
|
$
|
232,806
|
||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable
|
$
|
4,664
|
$
|
11,214
|
||||
Accrued
liabilities
|
10,811
|
24,712
|
||||||
Deferred
revenue
|
8,970
|
9,461
|
||||||
Current
portion of capital lease obligations
|
35
|
90
|
||||||
Total
current liabilities
|
24,480
|
45,477
|
||||||
Other
liabilities
|
1,419
|
1,001
|
||||||
Capital
lease obligations, less current portion
|
12
|
17
|
||||||
Total
liabilities
|
25,911
|
46,495
|
||||||
Commitments and contingencies (Note 7) | ||||||||
Stockholders’
equity
|
||||||||
Common
stock, $0.0001 par value; 100,000 shares authorized; 25,162 and 25,138
shares issued and outstanding on March 31, 2009 and December 31, 2008,
respectively
|
2
|
2
|
||||||
Additional
paid-in capital
|
205,042
|
201,993
|
||||||
Accumulated
deficit
|
(21,916
|
)
|
(15,684
|
)
|
||||
Total stockholders' equity
|
183,128
|
186,311
|
||||||
Total liabilities and stockholders'
equity
|
$
|
209,039
|
$
|
232,806
|
Three
Months Ended
March
31,
|
||||||||
2009
|
2008
|
|||||||
Net
revenues
|
$
|
36,012
|
$
|
34,338
|
||||
Cost
of net revenues(1)
|
19,672
|
17,929
|
||||||
Gross
profit
|
16,340
|
16,409
|
||||||
Operating
expenses(1):
|
||||||||
Technology
and development
|
10,994
|
9,164
|
||||||
Sales
and marketing
|
7,797
|
8,055
|
||||||
General
and administrative
|
6,945
|
7,621
|
||||||
Total
operating expenses
|
25,736
|
24,840
|
||||||
Loss
from operations
|
(9,396
|
)
|
(8,431
|
)
|
||||
Interest
expense
|
(88
|
)
|
(28
|
)
|
||||
Interest
and other income, net
|
324
|
1,347
|
||||||
Loss
before income taxes
|
(9,160
|
)
|
(7,112
|
)
|
||||
Benefit
from income taxes
|
2,928
|
3,473
|
||||||
Net
loss
|
$
|
(6,232
|
)
|
$
|
(3,639
|
)
|
||
Net
loss per share — basic and diluted
|
$
|
(0.25
|
)
|
$
|
(0.15
|
)
|
||
Weighted-average
shares outstanding — basic and diluted
|
25,148
|
24,949
|
||||||
(1)
Stock-based compensation is allocated as follows:
|
||||||||
Cost
of net revenues
|
$
|
95
|
$
|
84
|
||||
Technology
and development
|
633
|
391
|
||||||
Sales
and marketing
|
716
|
411
|
||||||
General
and administrative
|
1,360
|
932
|
Three
Months Ended
March
31,
|
||||||||
2009
|
2008
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
loss
|
$
|
(6,232
|
)
|
$
|
(3,639
|
)
|
||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||
Depreciation
and amortization
|
6,249
|
5,428
|
||||||
Amortization
of intangible assets
|
457
|
457
|
||||||
Stock-based
compensation
|
2,804
|
1,818
|
||||||
Loss/(gain)
on disposal of property and equipment
|
13
|
(8
|
)
|
|||||
Deferred
income taxes
|
1,961
|
(2,981
|
)
|
|||||
Changes
in operating assets and liabilities, net of acquisition:
|
||||||||
Accounts
receivable, net
|
2,705
|
1,754
|
||||||
Inventories
|
482
|
772
|
||||||
Prepaid
expenses and other current assets
|
(4,671
|
) |
624
|
|||||
Other
assets
|
(337
|
) |
(4
|
)
|
||||
Accounts
payable
|
(7,786
|
)
|
(5,519
|
)
|
||||
Accrued
and other liabilities
|
(14,412
|
)
|
(10,596
|
)
|
||||
Deferred
revenue
|
(491
|
)
|
(136
|
)
|
||||
Net
cash used in operating activities
|
(19,258
|
)
|
(12,030
|
)
|
||||
Cash
flows from investing activities:
|
||||||||
Purchases
of property and equipment
|
(2,150
|
)
|
(7,930
|
)
|
||||
Capitalization
of software and website development costs
|
(824
|
)
|
(848
|
)
|
||||
Acquisition
of business, net of cash acquired
|
-
|
(10,101
|
)
|
|||||
Proceeds
from sale of equipment
|
-
|
6
|
||||||
Proceeds
from sale of short-term investments
|
-
|
3,002
|
||||||
Purchases
of long-term investments
|
-
|
(52,250
|
)
|
|||||
Net
cash used in investing activities
|
(2,974
|
)
|
(68,121
|
)
|
||||
Cash
flows from financing activities:
|
||||||||
Principal
payments of capital lease obligations
|
(59
|
)
|
(201
|
)
|
||||
Proceeds
from issuance of common stock upon exercise of stock
options
|
57
|
592
|
||||||
Shares
withheld for payment of employee's withholding tax
liability
|
(56
|
) |
-
|
|||||
Net
cash (used in) provided by financing activities
|
(58
|
) |
391
|
|||||
Net
decrease in cash and cash equivalents
|
(22,290
|
)
|
(79,760
|
)
|
||||
Cash
and cash equivalents, beginning of period
|
88,164
|
122,582
|
||||||
Cash
and cash equivalents, end of period
|
$
|
65,874
|
$
|
42,822
|
||||
Supplemental
schedule of non-cash investing activities
|
||||||||
Net
change in accrued purchases of property and equipment
|
$ |
2,008
|
$ |
-
|
Three
Months Ended
March
31,
|
||||||||
2009
|
2008
|
|||||||
Unrealized
loss in investments, net of tax of $0 and $860
|
$
|
--
|
$
|
(1,596
|
)
|
|||
Net
loss
|
(6,232
|
)
|
(3,639
|
)
|
||||
Total
comprehensive loss
|
$
|
(6,232
|
)
|
$
|
(5,235
|
)
|
Number of Options Outstanding
|
Weighted Average Exercise Price
|
Weighted Average Contractual Term
(Years)
|
Aggregate Intrinsic Value
|
|||||||||||||
Balances,
December 31, 2008
|
5,529
|
$
|
13.41
|
|||||||||||||
Granted
|
14
|
7.83
|
||||||||||||||
Exercised
|
(14
|
)
|
4.18
|
|||||||||||||
Forfeited,
cancelled or expired
|
(272
|
)
|
13.44
|
|||||||||||||
Balances,
March 31, 2009
|
5,257
|
$
|
13.42
|
7.2
|
$
|
6,928
|
||||||||||
Options
vested and expected to vest at March 31, 2009
|
4,858
|
$
|
13.05
|
7.1
|
$
|
6,876
|
||||||||||
Options
vested at March 31, 2009
|
3,418
|
$
|
10.98
|
6.5
|
$
|
6,645
|
Three
Months Ended
March
31,
|
||||||||
2009
|
2008
|
|||||||
(Unaudited)
|
(Unaudited)
|
|||||||
Dividend
yield
|
—
|
—
|
||||||
Annual
risk free rate of return
|
1.8
|
%
|
2.2
|
%
|
||||
Expected
volatility
|
59.9
|
%
|
51.4
|
%
|
||||
Expected
term (years)
|
4.7
|
4.3
|
Number of Units Outstanding
|
Weighted Average Grant Date Fair
Value
|
|||||||
Balances,
December 31, 2008
|
958
|
$
|
12.11
|
|||||
Granted
|
865
|
7.95
|
||||||
Vested
|
(18)
|
20.15
|
||||||
Forfeited,
cancelled or expired
|
(103)
|
14.28
|
||||||
Balances,
March 31, 2009
|
1,702
|
$
|
9.78
|
Three Months Ended March
31,
|
||||||||
2009
|
2008
|
|||||||
Historical
net loss per share:
|
||||||||
Numerator
|
||||||||
Net
loss
|
$
|
(6,232
|
)
|
$
|
(3,639
|
)
|
||
Denominator
|
||||||||
Weighted-average
common shares outstanding
|
25,148
|
24,953
|
||||||
Less:
Weighted-average unvested common shares subject to
repurchase
|
-
|
(4
|
)
|
|||||
Denominator
for basic net loss per share
|
25,148
|
24,949
|
||||||
Dilutive
effect of stock options, restricted stock units, and shares subject to
repurchase
|
—
|
—
|
||||||
Denominator
for diluted net loss per share
|
25,148
|
24,949
|
||||||
Net
loss per share — basic and diluted
|
$
|
(0.25
|
)
|
$
|
(0.15
|
)
|
Three Months Ended March
31,
|
||||||||
2009
|
2008
|
|||||||
Options
to purchase common stock, common stock subject to repurchase, and
restricted stock
|
6,685
|
5,776
|
March
31, 2009
|
||||||||||||||||
Fair
Value
|
Level
1
|
Level
2
|
Level
3
|
|||||||||||||
Cash
equivalents:
|
||||||||||||||||
Money market funds
|
$
|
64,734
|
$
|
64,734
|
$
|
—
|
$
|
—
|
||||||||
Long-term
investments:
|
||||||||||||||||
Auction
rate securities
|
44,940
|
—
|
—
|
44,940
|
||||||||||||
Rights
on ARS securities
|
7,310
|
—
|
—
|
7,310
|
||||||||||||
Total
financial assets
|
$
|
116,984
|
$
|
64,734
|
$
|
—
|
$
|
52,250
|
Rights
|
ARS
|
|||||||
Balance
at December 31, 2008
|
$
|
9,013
|
$
|
43,237
|
||||
Unrealized
gain/(loss) included in earnings
|
(1,703)
|
1,703
|
||||||
Balance
at March 31, 2009
|
$
|
7,310
|
$
|
44,940
|
March
31, 2009
|
December
31, 2008
|
|||||||
(in
thousands)
|
||||||||
Intraperiod
deferred tax asset
|
$ | 4,890 | $ | - | ||||
Prepaid service
contracts - current portion
|
2,558 | 2,818 | ||||||
Prepaid
expenses and other current assets
|
2,198 | 1,931 | ||||||
9,646 | 4,749 |
March
31, 2009
|
December 31, 2008
|
|||||||
(in
thousands)
|
||||||||
Computer
and other equipment
|
$
|
78,719
|
$
|
78,299
|
||||
Software
|
6,502
|
7,450
|
||||||
Leasehold
improvements
|
6,484
|
8,933
|
||||||
Furniture
and fixtures
|
2,607
|
2,609
|
||||||
Capitalized
software and website development costs
|
13,182
|
12,520
|
||||||
107,494
|
109,811
|
|||||||
Less:
Accumulated depreciation and amortization
|
(60,411
|
)
|
(61,805
|
)
|
||||
Net
property and equipment
|
$
|
47,083
|
$
|
48,006
|
March
31, 2009
|
December 31, 2008
|
|||||||
(in
thousands)
|
||||||||
Accrued
compensation
|
$ |
2,417
|
$ |
4,110
|
||||
Accrued
marketing expenses
|
2,048
|
|
6,697
|
|||||
Accrued purchases | 1,622 | 952 | ||||||
Accrued
income and sales taxes
|
|
817
|
5,923
|
|||||
Accrued production facility expenses | 556 | 2,677 | ||||||
Accrued
consultant expenses
|
530
|
1,439
|
||||||
Accrued
other
|
2,821
|
2,914
|
||||||
$
|
10,811
|
$
|
24,712
|
Facility
Closure
Costs
|
Workforce
Reduction Costs
|
Total
|
||||||||||
Balance,
December 31, 2008
|
$
|
80
|
$
|
633
|
$
|
713
|
||||||
Restructuring
charges
|
271
|
194
|
465
|
|||||||||
Payments
|
—
|
(827)
|
(827)
|
|||||||||
Balance,
March 31, 2009
|
$
|
351
|
$
|
—
|
$
|
351
|
Three Months Ended March
31,
|
||||||||
2009
|
2008
|
|||||||
Net
revenues
|
100
|
%
|
100
|
%
|
||||
Cost
of net revenues
|
55
|
%
|
52
|
%
|
||||
Gross
profit
|
45
|
%
|
48
|
%
|
||||
Operating
expenses:
|
||||||||
Technology
and development
|
31
|
%
|
27
|
%
|
||||
Sales
and marketing
|
22
|
%
|
23
|
%
|
||||
General
and administrative
|
19
|
%
|
22
|
%
|
||||
Loss
from operations
|
(26
|
)%
|
(24
|
)%
|
||||
Interest
expense
|
0
|
%
|
0
|
%
|
||||
Interest and
other income, net
|
1
|
%
|
4
|
%
|
||||
Loss
before income taxes
|
(25
|
)%
|
(20
|
)%
|
||||
Benefit
from income taxes
|
8
|
%
|
10
|
%
|
||||
Net
loss
|
(17
|
)%
|
(10
|
)%
|
Three
Months Ended March 31,
|
||||||||||||||||
2009
|
2008
|
$
Change
|
%
Change
|
|||||||||||||
(in
thousands)
|
||||||||||||||||
Net
revenues
|
$
|
36,012
|
$
|
34,338
|
$
|
1,674
|
5
|
%
|
||||||||
Cost
of net revenues
|
19,672
|
17,929
|
1,743
|
10
|
%
|
|||||||||||
Percentage
of net revenues
|
55
|
%
|
52
|
%
|
||||||||||||
Gross
profit
|
16,340
|
16,409
|
(69)
|
0
|
%
|
Three
Months Ended March 31,
|
||||||||||||||||
2009
|
2008
|
Change
|
%
Change
|
|||||||||||||
(In
thousands, except AOV amounts)
|
||||||||||||||||
Customers
|
888
|
895
|
(7)
|
(1)
|
%
|
|||||||||||
Orders
|
1,471
|
1,617
|
(146)
|
(9)
|
%
|
|||||||||||
Average
order value
|
$
|
24.48
|
$
|
21.23
|
$
|
3.25
|
15
|
%
|
Three
Months Ended March 31,
|
||||||||||||||||
2009
|
2008
|
$
Change
|
%
Change
|
|||||||||||||
(in
thousands)
|
||||||||||||||||
Technology
and development
|
$
|
10,994
|
$
|
9,164
|
$
|
1,830
|
20
|
%
|
||||||||
Percentage
of net revenues
|
31
|
%
|
27
|
%
|
||||||||||||
Sales
and marketing
|
7,797
|
8,055
|
(258)
|
(3)
|
%
|
|||||||||||
Percentage
of net revenues
|
22
|
%
|
23
|
%
|
||||||||||||
General
and administrative
|
6,945
|
7,621
|
(676)
|
(9)
|
%
|
|||||||||||
Percentage
of net revenues
|
19
|
%
|
22
|
%
|
Three
Months Ended March 31,
|
||||||||||||
2009
|
2008
|
Change
|
||||||||||
(In
thousands)
|
||||||||||||
Interest
expense
|
$
|
(88
|
)
|
$
|
(28
|
)
|
$
|
(60)
|
||||
Interest
and other income, net
|
$
|
324
|
$
|
1,347
|
$
|
(1,023
|
)
|
Three
Months Ended
March
31,
|
||||||||
2009
|
2008
|
|||||||
(in
thousands)
|
||||||||
Income
tax benefit
|
$ | 2,928 | $ | 3,473 | ||||
Effective
tax rate
|
32 | % | 49 | % |
Three
Months Ended
March
31,
|
||||||||
2009
|
2008
|
|||||||
(in
thousands)
|
||||||||
Loss
before income taxes
|
$
|
(9,160
|
)
|
$
|
(7,112
|
)
|
||
Net
loss
|
(6,232
|
)
|
(3,639
|
)
|
Three
Months Ended March 31,
|
||||||||
2009
|
2008
|
|||||||
(in
thousands)
|
||||||||
Consolidated
Statements of Cash Flows Data:
|
||||||||
Purchases
of property and equipment
|
$
|
2,150
|
$
|
7,930
|
||||
Capitalization
of software and website development costs
|
824
|
848
|
||||||
Depreciation
and amortization
|
6,706
|
5,885
|
||||||
Cash
flows used in operating activities
|
(19,258
|
)
|
(12,030
|
)
|
||||
Cash
flows used in investing activities
|
(2,974
|
)
|
(68,121
|
)
|
||||
Cash
flows (used in ) provided by financing activities
|
(58)
|
391
|
•
|
general
economic conditions, including recession and economic slowdown in the U.S.
and worldwide and higher inflation, as well as those economic
conditions specific to the Internet and e-commerce
industries;
|
•
|
demand
for our products and services, including seasonal
demand;
|
•
|
our
pricing and marketing strategies and those of our
competitors;
|
•
|
our
ability to attract visitors to our website and convert those visitors into
customers;
|
•
|
our
ability to retain customers and encourage repeat
purchases;
|
•
|
our
ability to sustain our profit margins, and our ability to diversify our
product offerings and sell to consumers photo-based products such as photo
books, calendars and cards;
|
•
|
the
costs of customer
acquisition;
|
•
|
our
ability to manage our production and fulfillment
operations;
|
•
|
the
costs to produce our prints and photo-based products and merchandise and
to provide our services;
|
•
|
the
costs of expanding or enhancing our technology or
website;
|
•
|
a
significant increase in returns and credits, beyond our estimated
allowances, for customers who are not satisfied with our
products;
|
•
|
declines
or disruptions to the travel
industry;
|
•
|
variations
in weather, particularly heavy rain and snow which tend to depress travel
and picture taking;
|
•
|
the
timing of holidays;
|
•
|
volatility
in our stock price, which may lead to higher stock-based compensation
expense;
|
•
|
consumer
preferences for digital photography
services;
|
•
|
improvements
to the quality, cost and convenience of desktop printing of digital
pictures and products; and
|
•
|
macroeconomic
and geopolitical events such as recession, inflation, war, threat of war
or terrorist actions.
|
•
|
maintain
and increase the size of our customer
base;
|
•
|
maintain
and enhance our brand;
|
•
|
maintain
and grow our website and customer
operations;
|
•
|
enhance
and expand our products and
services;
|
•
|
successfully
execute our business and marketing
strategy;
|
•
|
continue
to develop and upgrade our technology and information processing
systems;
|
•
|
continue
to enhance our service to meet the needs of a changing
market;
|
•
|
provide
superior customer service;
|
•
|
respond
to competitive developments; and
|
•
|
attract,
integrate, retain and motivate qualified
personnel.
|
•
|
Online
digital photography services companies such as Kodak EasyShare Gallery
(formerly known as Ofoto), Snapfish, which is a service of
Hewlett-Packard, American Greetings’ Photoworks and Webshots brands, and
others;
|
•
|
“Big
Box” retailers such as Wal-Mart, Costco and others that are seeking to
offer low cost digital photography products and services, such as in-store
fulfillment and self-service kiosks for printing; these competitors may,
among other strategies, offer their customers heavily discounted in-store
products and services that compete directly with our
offerings;
|
•
|
Drug
stores such as Walgreens, CVS and others that offer in-store pick-up from
Internet orders;
|
•
|
Regional
photography companies such as Ritz Camera that have established brands and
customer bases in existing photography
markets;
|
•
|
Internet
portals and search engines such as Yahoo!, AOL, Google that offer
broad-reaching digital photography and related products and services to
their large user bases;
|
•
|
Home
printing service providers such as Hewlett-Packard, Epson, Canon, and
Kodak that are seeking to expand their printer and ink businesses by
gaining market share in the emerging digital photography marketplace;
and
|
•
|
Photo-related
software companies such as Apple, Microsoft
and Corel;
|
•
|
Social
media companies that host images such as MySpace, Facebook and Hi5;
and
|
•
|
Specialized
companies in the photo book and stationery business such as Hallmark,
American Greetings, Tiny Prints, Picaboo and
Blurb.
|
•
|
the
inability to physically handle and examine product
samples;
|
•
|
delivery
time associated with Internet
orders;
|
•
|
concerns
about the security of online transactions and the privacy of personal
information;
|
•
|
delayed
shipments or shipments of incorrect or damaged products;
and
|
•
|
inconvenience
associated with returning or exchanging purchased
items.
|
•
|
Economic
downturns and market conditions or trends in our industry or the
macro-economy as a whole;
|
•
|
price
and volume fluctuations in the overall stock
market;
|
•
|
changes
in operating performance and stock market valuations of other technology
companies generally, or those in our industry in
particular;
|
•
|
the
financial projections we may provide to the public, any changes in these
projections or our failure to meet these
projections;
|
•
|
changes
in financial estimates by any securities analysts who follow our company,
our failure to meet these estimates or failure of those analysts to
initiate or maintain coverage of our
stock;
|
•
|
ratings
downgrades by any securities analysts who follow our
company;
|
•
|
the
public’s response to our press releases or other public announcements,
including our filings with the
SEC;
|
•
|
announcements
by us or our competitors of significant technical innovations,
acquisitions, strategic partnerships, joint ventures or capital
commitments;
|
•
|
introduction
of technologies or product enhancements that reduce the need for our
products;
|
•
|
impairment
or loss in value of our investments in auction rate
securities;
|
•
|
the
loss of key personnel;
|
•
|
lawsuits
threatened or filed against
us;
|
•
|
future
sales of our common stock by our executive officers, directors and
significant stockholders; and
|
•
|
other
events or factors, including those resulting from war, incidents of
terrorism or responses to these
events.
|
•
|
our
board is classified into three classes of directors, each with staggered
three-year terms;
|
•
|
only
our chairman, our chief executive officer, our president, or a majority of
our board of directors is authorized to call a special meeting of
stockholders;
|
•
|
our
stockholders may take action only at a meeting of stockholders and not by
written consent;
|
•
|
vacancies
on our board of directors may be filled only by our board of directors and
not by stockholders;
|
•
|
our
certificate of incorporation authorizes undesignated preferred stock, the
terms of which may be established and shares of which may be issued
without stockholder approval;
and
|
•
|
advance
notice procedures apply for stockholders to nominate candidates for
election as directors or to bring matters before an annual meeting of
stockholders.
|
Exhibit Number |
Description
|
10.01 | Transition Agreement between the Company and Kathryn E. Olson dated March 20, 2009. |
10.02 | Amendment to Employment Agreement dated December 8, 2008 for Jeffrey T. Housebold. |
10.03 | Amendment Number 2 to Employment Agreement dated March 12, 2009 for Jeffrey T. Housenbold. |
10.04 | Offer Letter between Company and Peter Elarde, dated August 30, 2001. |
10.05 | Amendment to Offer Letter dated December 30, 2008 for Peter Elarde. |
31.01
|
Certification
of Chief Executive Officer Pursuant to Securities Exchange Act
Rule 13a-14(a).
|
31.02
|
Certification
of Chief Financial Officer Pursuant to Securities Exchange Act
Rule 13a-14(a).
|
32.01
|
Certification
of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350 and
Securities Exchange Act Rule 13a-14(b).*
|
32.02
|
Certification
of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350 and
Securities Exchange Act Rule
13a-14(b).*
|
*
|
This
certification is not deemed “filed” for purposes of Section 18 of the
Securities Exchange Act, or otherwise subject to the liability of that
section. Such certification will not be deemed to be incorporated by
reference into any filing under the Securities Act of 1933 or the
Securities Exchange Act of 1934, except to the extent that Shutterfly
specifically incorporates it by
reference.
|
Dated:
April 30, 2009
|
By:
|
/s/ Jeffrey T.
Housenbold
Jeffrey
T. Housenbold
President
and Chief Executive Officer
(Principal Executive
Officer)
|
Dated:
April 30, 2009
|
By:
|
/s/ Mark J. Rubash
Mark
J. Rubash
Senior
Vice President and Chief Financial Officer
(Principal Financial
Officer)
|
Exhibit
Number
|
Description
|
10.01 | Transition Agreement between the Company and Kathryn E. Olson dated March 20, 2009. |
10.02 | Amendment to Employment Agreement dated December 8, 2008 for Jeffrey T. Housebold. |
10.03 | Amendment Number 2 to Employment Agreement dated March 12, 2009 for Jeffrey T. Housenbold. |
10.04 | Offer Letter between Company and Peter Elarde, dated August 30, 2001. |
10.05 | Amendment to Offer Letter dated December 30, 2008 for Peter Elarde. |
31.01
|
Certification
of Chief Executive Officer Pursuant to Securities Exchange Act
Rule 13a-14(a).
|
31.02
|
Certification
of Chief Financial Officer Pursuant to Securities Exchange Act
Rule 13a-14(a).
|
32.01
|
Certification
of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350 and
Securities Exchange Act Rule 13a-14(b).*
|
32.02
|
Certification
of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350 and
Securities Exchange Act Rule
13a-14(b).*
|
*
|
This
certification is not deemed “filed” for purposes of Section 18 of the
Securities Exchange Act, or otherwise subject to the liability of that
section. Such certification will not be deemed to be incorporated by
reference into any filing under the Securities Act of 1933 or the
Securities Exchange Act of 1934, except to the extent that Shutterfly
specifically incorporates it by
reference.
|