Exhibit (d)(8)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into as of July 1, 2006, by and
between Bluefly, Inc., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxxx ("Xxxxx").
RECITALS
WHEREAS, the Company desires to provide for the continued retention of
the services of Xxxxx as the Chief Operating Officer and Chief Financial Officer
of the Company in accordance with the terms and conditions of this Agreement.
WHEREAS, Xxxxx desires to serve the Company as its Chief Operating
Officer and Chief Financial Officer in accordance with the terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Xxxxx agree as
follows:
1. TERM
The Company hereby agrees to employ Xxxxx as the Chief Operating
Officer and Chief Financial Officer of the Company, and Xxxxx hereby agrees to
serve in such capacity, for a term commencing on the date hereof and ending July
1, 2009, upon the terms and subject to the conditions contained in this
Agreement; provided, however, that if the Company does not provide Xxxxx with
written notice of its desire not to renew this Agreement at least 90 days prior
to the end of the then current term (including any one year renewal term that is
created as a result of this proviso), this Agreement shall automatically extend
for one year from the end of the then current term.
2. DUTIES
During the term of this Agreement, Xxxxx shall serve as the Chief
Operating Officer and Chief Financial Officer of the Company reporting directly
to the Chief Executive Officer of the Company, and he shall perform such duties,
and have such powers, authority, functions, duties and responsibilities for the
Company as are reasonably assigned to him by the Chief Executive Officer and the
Board of Directors of the Company (the "Board") and as are consistent with the
duties, responsibilities, and activities of a senior executive officer of the
Company. To the extent that the Company becomes a division or subsidiary of
another entity, Xxxxx shall report directly to, and have such powers, authority,
functions, duties and responsibilities as are reasonably assigned to him by, the
Chief Executive Officer of the division or subsidiary that currently comprises
the Company or to a senior executive officer of such other entity. It is
understood that the duties of Xxxxx, should the Company become a division or
subsidiary of another entity, shall be generally consistent with his duties
prior to such event, but shall take into account the changes associated with
running a division or subsidiary, rather than an entire entity.
The principal location of Barry's employment shall be at the Company's
principal office which shall be located in the New York City vicinity (i.e.
within a twenty (20) mile radius of
Manhattan), although Xxxxx understands and agrees that he will be required to
travel from time to time for business reasons. Xxxxx shall devote substantially
all of his business time to the performance of his duties as the Chief Operating
Officer and Chief Financial Officer of the Company during the term of this
Agreement. Xxxxx shall not, directly or indirectly, render professional services
to any other person or entity, without the consent of the Company's Board of
Directors; provided, however, that nothing contained herein shall prevent Xxxxx
from rendering any service to any charitable organization or family business so
long as it does not interfere unreasonably with his duties and obligations
hereunder.
3. COMPENSATION
For services rendered by Xxxxx to the Company during the term of this
Agreement, the Company shall pay him a minimum base salary of three hundred
fifty thousand dollars ($350,000) per year ("Base Salary"), payable in
accordance with the standard payroll practices of the Company, subject to
increases in the sole discretion of the Compensation Committee of the Board (the
"Compensation Committee"), taking into account merit, corporate and individual
performance and general business conditions, including changes in the "cost of
living index."
4. INCENTIVE COMPENSATION/EXCHANGE OF OPTIONS FOR RESTRICTED
STOCK AND DEFERRED STOCK UNITS; NEW GRANT OF DEFERRED STOCK
UNITS
a. Incentive Compensation. For each fiscal year during
the Term, Xxxxx shall be eligible to receive a performance bonus as follows:
provided that Xxxxx remains employed with the Company through the last day of
such fiscal year, Xxxxx will be eligible to earn a performance bonus on the
basis of the achievement of certain targets to be set for each fiscal year by
the Compensation Committee of the Board of Directors in its sole discretion.
b. Exchange of Certain Outstanding Options Held by Xxxxx
for Restricted Stock and Deferred Stock Units.
(i) Options Exchanged for Restricted Stock. Xxxxx hereby forfeits
all of his rights to the options listed on Exhibit A hereto to purchase shares
of common stock of the Company ("Shares"), and in consideration for such
forfeiture the Company is simultaneously with the execution of this Agreement,
(x) granting to Xxxxx a Restricted Stock Award under the Company's 2005 Stock
Incentive Plan (the "Plan") for 269,965 Shares in the form attached hereto as
Exhibit B and (y) paying to Xxxxx x xxxx bonus equal to $123,204. The cash bonus
is intended to compensate Xxxxx for the income taxes payable on the Restricted
Stock Award. The shares subject to the Restricted Stock Award shall vest in full
on January 1, 2007.
(ii) Options Exchanged for Deferred Stock Unit Award. Xxxxx hereby
forfeits all of his rights to the options to purchase Shares listed on Exhibit C
hereto, and in consideration for such forfeiture, the Company is, simultaneously
with the execution of this Agreement, granting to Xxxxx under the Plan, a
Deferred Stock Unit Award for and representing 45,837 underlying Shares under
the Plan in the form attached hereto as Exhibit D.
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(iii) Additional Deferred Stock Unit Award. Subject to the approval
by the stockholders of the Company of an amendment to the Plan to increase the
number of shares available for grant thereunder and the maximum annual award to
any one participant under the Plan, Xxxxx shall be granted under the Plan an
additional Deferred Stock Unit Award (the "Supplementary DSUs") for and
representing 4,062,692 underlying Shares in the form attached hereto as Exhibit
E. The Deferred Stock Units making up the Deferred Stock Unit Awards referred to
in subparagraphs 4(b)(ii) and 4(b)(iii) of this Agreement are hereinafter
referred to as the "DSUs".
(iv) Terms of the DSUs. The DSUs are not Shares, but rather a
promise to deliver actual Shares in the future. The DSUs awarded hereunder will
be credited to an unfunded, bookkeeping account of the Company maintained on
Barry's behalf and will be distributable and subject to the restrictions
contained in the Plan and in the applicable DSU Award.
(A) Vesting of DSUs. The DSUs shall vest as follows: (I)
one-third of the Supplementary DSUs shall vest in four equal
quarterly installments commencing on October 1, 2006 (e.g.,
the first of four equal quarterly vesting periods will begin
on October 1, 2006 so that 25% of such DSUs shall have vested
as of January 1, 2007) (the "One-Year DSUs"), (II) both (a)
one-third of the Supplementary DSUs and (b) the 45,837 DSUs
issued in exchange for options with a vesting date prior to
August 31, 2007, shall vest in eight equal quarterly
installments commencing on October 1, 2006 (e.g., the first of
eight equal quarterly vesting periods will begin on October 1,
2006 so that 12.5% of such DSUs shall have vested as of
January 1, 2007) (collectively, the "Two-Year DSUs"), and
(III) one-third of the Supplementary DSUs shall vest in twelve
equal quarterly installments commencing on October 1, 2006
(e.g., the first of twelve equal quarterly vesting periods
will begin on October 1, 2006 so that approximately 8.33% of
such DSUs shall have vested as of January 1, 2007)
(collectively, the "Three-Year DSUs").
(B) Termination of Employment; Forfeiture. In the event
that Barry's employment is terminated prior to the vesting of
any of such DSUs, unless such termination is a Constructive
Termination or a termination without Cause as such terms are
defined in paragraph 7 below (in which case the vesting shall
be accelerated as set forth therein), all unvested DSUs as of
the date of such termination shall be forfeited immediately by
Xxxxx.
(C) Distribution of DSUs. Subject to paragraph
4(b)(iv)(B), all of the vested DSUs underlying a Deferred
Stock Unit Award will be distributable in Shares on the date
of distribution on the earliest to occur of: (I) (a) with
respect to the One-Year DSUs only, October 1, 2007, (b) with
respect to the Two-Year DSUs only, October 1, 2008, and (c)
with respect to the Three-Year DSUs only, October 1, 2009,
(II) death, (III) the date on which Xxxxx is "disabled" (as
such term is defined in Section 409A(a)(2)(C) of the Internal
Revenue Code of 1986, as amended ("Code") and the official
guidance issued thereunder), (IV) subject to paragraph 7(c),
the effective date of Barry's Constructive Termination or
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termination without Cause, or (V) to the extent provided in
paragraph 8, immediately following a Change of Control (as
defined below) and thereafter.
(D) No Rights as Shareholders. Xxxxx shall not have any
rights of a Shareholder with respect to the DSUs, including
the right to vote such shares or the right to receive
dividends or other distributions made with respect to the
shares, until the Shares underlying the DSUs are distributed
to Xxxxx. However, if any dividends are paid on the Shares
underlying the DSUs, whether in cash or xxxxx, Xxxxx will be
credited with "Dividend Rights." Such Dividend Rights shall be
credited to Barry's DSU account as follows: Xxxxx shall be
credited with additional DSUs equal to the value of such
dividend on the date such dividend is paid divided by the Fair
Market Value (as determined under the Plan) on the date the
dividend is paid multiplied by the number of DSUs credited to
Xxxxx on the date the dividend is paid. The Dividend Rights
credited to Xxxxx will be subject to the same restrictions
applicable to the DSUs to which they relate as initially
credited to Xxxxx under this paragraph 4(b).
(E) Tax Withholding. Xxxxx shall be responsible to
fulfill any withholding tax requirements on the DSUs as
specified in the Plan and as required by applicable law. Xxxxx
shall notify the Company no later than fifteen business days
prior to a distribution date, as to whether he intends to make
a cash payment to the Company for the withholding amount or
would like the Company to make arrangements for such payment.
If he elects to have the Company make the arrangements or
fails to provide the required notice, the Company shall
satisfy such withholding tax requirements, through withholding
distribution of a portion of the DSUs equal to the withholding
obligation based on the Fair Market Value of the Shares
already owned by Xxxxx on the date of distribution; provided
that if the Company's Board of Directors determines that it
would not be prudent to use the Company's cash flow for such
purpose, the Company shall advise Xxxxx who can then arrange
to sell Shares for the purpose of satisfying the withholding
tax requirement prior to the distribution of the applicable
Shares.
5. EXPENSE REIMBURSEMENT AND PERQUISITES
a. During the term of this Agreement, Xxxxx shall be
entitled to reimbursement of all reasonable and actual out-of-pocket expenses
incurred by him in the performance of his services to the Company consistent
with corporate policies, provided that the expenses are properly accounted for.
b. During each calendar year of the term of this
Agreement, Xxxxx shall be entitled to reasonable vacation with full pay;
provided, however, that Xxxxx shall schedule such vacations at times convenient
to the Company.
c. During the term of this Agreement, the Company shall
provide an annual allowance of seventeen thousand five hundred dollars ($17,500)
for the purchase of term life insurance by the Company for the benefit of Xxxxx
(which shall be in lieu of any other life insurance benefit) and the purchase of
a supplemental disability insurance policy, which together
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with any other group coverage offered by the Company, provide for coverage of
the maximum allowable disability benefit. Xxxxx shall be entitled to participate
in all dental insurance and disability plans, major medical insurance and other
medical, insurance, and employee benefit plans instituted by the Company from
time to time on the same terms and conditions as those offered to other senior
executive officers of the Company, to the extent permitted by law.
6. NON-COMPETITION; NON-SOLICITATION
a. In consideration of the Incentive Award and severance
benefits hereunder, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, during the term of this
Agreement and during the "Non-Competition Period" (as defined in paragraph 6(c)
below) Xxxxx shall not, without the prior written consent of the Company,
anywhere in the world, directly or indirectly, (i) enter into the employ of or
render any services to any "Competitive Business" (as defined below); (ii)
engage in any Competitive Business for his own account; (iii) become associated
with or interested in any Competitive Business as an individual, partner,
shareholder, creditor, director, officer, principal, agent, employee, trustee,
consultant, advisor or in any other relationship or capacity; (iv) employ or
retain, or have or cause any other person or entity to employ or retain, any
person who was employed or retained by the Company on the date of termination of
this Agreement or who had been employed by the Company within the nine month
period prior to the date of termination of this Agreement, except if, at the
time of such employment or retention, such person had not been employed by the
Company during the nine month period immediately preceding such employment or
retention; or (v) solicit, interfere with, or endeavor to entice away from the
Company, for the benefit of a Competitive Business, any of its customers or
other persons with whom the Company has a contractual relationship. For purposes
of this Agreement, a "Competitive Business" shall mean: (a) any person,
corporation, partnership, firm or other entity whose primary business is the
sale or consignment of off-price apparel and/or off-price fashion accessories;
(b) any division of a person, corporation, partnership, firm or other entity
(but not the person, corporation, partnership, firm or other entity itself)
whose primary business is internet based selling or consignment, and, in either
such case, consists of ten (10) or more brands of off-price apparel and/or
off-price fashion accessories; or (c) the off-price divisions of Nordstrom, Saks
Fifth Avenue, Neiman Marcus or the off-price division of another retailer of ten
(10) or more brands of apparel and/or fashion accessories. However, nothing in
this Agreement shall preclude Xxxxx from investing his personal assets in the
securities of any corporation or other business entity which is engaged in a
Competitive Business if such securities are traded on a national stock exchange
or in the over-the-counter market and if such investment does not result in him
beneficially owning, at any time, more than 3% of the publicly-traded equity
securities of such Competitive Business.
x. Xxxxx and the Company agree that the covenants of
non-competition and non-solicitation contained in this paragraph 6 are
reasonable covenants under the circumstances, and further agree that if, in the
opinion of any court of competent jurisdiction, such covenants are not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of these covenants as to the
court shall appear not reasonable and to enforce the remainder of these
covenants as so amended. Xxxxx agrees that any breach of the covenants contained
in this paragraph 6 would irreparably injure the Company.
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Accordingly, Xxxxx agrees that the Company, in addition to pursuing any other
remedies it may have in law or in equity, may obtain an injunction against Xxxxx
from any court having jurisdiction over the matter, restraining any further
violation of this paragraph 6.
c. The "Non-Competition Period" shall extend for a
period of eighteen months following the end of the term of this Agreement;
provided, however that, in the event that the Agreement is terminated by the
Company without "Cause" (as defined in paragraph 7(a)(iv)), or by Xxxxx pursuant
to a "Constructive Termination" (as defined in paragraph 7(a)(iii)), the
Non-Competition Period shall expire on the first anniversary of the termination
of this Agreement (the "Modified Non-Competition Period"); and further provided
that in the event that during the Non-Competition Period or the Modified
Non-Competition Period, as the case may be, Xxxxx receives notice in writing
from the Company of any material breach of any of the covenants contained in
this paragraph 6 by him and Xxxxx cures such material breach within 21 days of
the date he receives such notice, then the Company will continue the Severance
Benefits provided pursuant to paragraph 7(b) below; provided, that Xxxxx shall
not be entitled to Severance Benefits for periods during which he was in
material breach of such covenants.
7. TERMINATION
a. This Agreement (other than as specifically stated
herein), the employment of Xxxxx, and Xxxxx'x position as Chief Operating
Officer and Chief Financial Officer of the Company shall terminate upon the
first to occur of:
(i) his death;
(ii) his "permanent disability," due to injury or sickness
for a continuous period of four (4) months, or a
total of eight months in a twelve (12) month period
(vacation time excluded), during which time Xxxxx is
unable to attend to his ordinary and regular duties;
(iii) a "Constructive Termination" by the Company, which,
for purposes of this Agreement, shall be deemed to
have occurred upon (A) the removal of Xxxxx from both
his positions as Chief Operating Officer and Chief
Financial Officer of the Company (it being understood
that the removal of Xxxxx from either such position
shall not be deemed a "Constructive Termination"),
(B) the material breach by the Company of this
Agreement, including any material diminution in the
nature or scope of the authorities, powers,
functions, duties or responsibilities of Xxxxx as
Chief Operating Officer and Chief Financial Officer
and a senior executive officer of the Company (or to
the extent that the Company becomes a division or
subsidiary of another entity, the authorities,
powers, functions, duties or responsibilities of the
Chief Operating Officer and Chief Financial Officer
or senior executive officer of such division or
subsidiary); provided that no such breach shall be
considered a Constructive Termination unless Xxxxx
has provided the Company with written notice of such
breach and the Company has failed to cure such
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breach within the thirty (30) day period following
its receipt of such notice;
(iv) the termination of this Agreement at any time without
Cause (as defined below) by the Company;
(v) subject to compliance with the notice provisions
contained in paragraph 1 of this Agreement, the
non-renewal of this Agreement by the Company and/or
the Board of Directors;
(vi) the termination of this Agreement for "Cause", which,
for purposes of this Agreement, shall mean that (1)
Xxxxx has been convicted of a felony or any serious
crime involving moral turpitude, or engaged in
materially fraudulent or materially dishonest actions
in connection with the performance of his duties
hereunder, (2) Xxxxx has willfully and materially
failed to perform his reasonably assigned duties
hereunder, (3) Xxxxx has breached the terms and
provisions of this Agreement in any material respect,
or (4) Xxxxx has failed to comply in any material
respect with the Company's written policies of
conduct of which he had actual notice, including with
respect to trading in securities; provided that the
Company shall not have any right to terminate this
Agreement for Cause pursuant to clauses (2), (3) or
(4) of this sub-paragraph (vi) as a result of a
breach unless the Company has provided Xxxxx with
written notice of such breach and Xxxxx has failed to
cure such breach within the twenty day period
following his receipt of such notice; or
(vii) the termination of this Agreement by Xxxxx, which
shall occur on not less than thirty (30) days prior
written notice from Xxxxx.
b. In the event that this Agreement is terminated, other
than as a result of a Constructive Termination or by the Company without Cause,
the Company shall pay Xxxxx his accrued but unpaid Base Salary and unreimbursed
business expenses and bonuses that have been earned and awarded but not yet paid
as of the date of his termination of employment and shall make no other payments
or provide any other benefits under this Agreement except that, unless this
Agreement is terminated for Cause, any other vested stock options shall be
exercisable for a period equal to the lesser of (x) one year from the date this
Agreement is terminated; (y) the remaining term of the applicable vested stock
option and (z) the period required to avoid any tax imposed under Section 409A
of the Code. In the event that this Agreement is terminated by the Company
without Cause pursuant to paragraph 7(a)(iv) or through a Constructive
Termination pursuant to paragraph 7(a)(iii), and subject to Barry's execution of
a mutual release reasonably acceptable to the Company and Xxxxx, the Company
shall pay Xxxxx his Base Salary through the date of termination, plus
unreimbursed business expenses and bonuses that have been earned and awarded but
not yet paid, as well as the following severance and noncompetition payments set
forth below (the "Severance Benefits"):
(i) the then-current Base Salary for a period of nine (9)
months from the date of termination;
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(ii) any unvested stock options, Restricted Stock or DSUs
that have been granted to Xxxxx which are outstanding
as of the date of such termination shall be deemed to
be fully vested as of that date and such stock
options shall be exercisable for a period equal to
the lesser of (x) one year from the date of
termination of this Agreement; (y) the remaining term
of the applicable stock option; and (z) the period
required to avoid any tax imposed under Section 409A
of the Code.
(iii) the Company shall maintain in effect, or reimburse
Xxxxx for the cost of maintaining, the medical and
dental insurance and disability and hospitalization
plans of the Company as well as any Company sponsored
life insurance policy in which Xxxxx participates as
of the date of such termination for a period of one
year from the date of termination.
The Severance Benefits shall be payable in periodic installments in accordance
with the Company's standard payroll practices.
c. Notwithstanding anything herein to the contrary, if
any payments due under this Agreement (including, but not limited to the
distribution of the DSUs hereunder) would subject Xxxxx to any tax imposed under
Section 409A of the Code if such payments were made at the time otherwise
provided herein, then the payments that cause such taxation shall be payable in
a single lump sum on the first day which is at least six (6) months after the
date of Barry's "separation from service" as set forth in Code Section
409A(2)(A)(i) and the official guidance issued thereunder
8. CHANGE OF CONTROL
a. In the event that a Change of Control (as defined
below) occurs during the term of this Agreement, any unvested stock options,
Restricted Stock and one half of any DSUs granted to Xxxxx which are outstanding
as of the date of that Change of Control and have not yet vested ("COC Unvested
DSUs") shall be deemed to be fully vested as of that date. Subject to paragraph
7(c), the remaining one half of the COC Unvested DSUs shall vest on the earliest
to occur of (x) the scheduled vesting date and (y) twelve (12) months from the
date of such Change of Control, subject, in each case, to Barry's continued
employment with the Company on such dates and (z) Barry's Constructive
Termination or termination without Cause following such Change of Control. The
DSUs that become vested due to the application of this paragraph 8 shall be
distributable upon the date that they become vested.
b. For purposes of this Agreement, "Change of Control"
shall be deemed to occur upon:
(1) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more (on a fully diluted basis) of
either (A) the then outstanding shares of common stock of the Company, taking
into account as outstanding for this purpose such common stock issuable upon the
exercise of options or
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warrants, the conversion of convertible stock or debt, and the exercise of any
similar right to acquire such common stock (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
for purposes of this Agreement, the following acquisitions shall not constitute
a Change of Control: (I) any acquisition by the Company or any "Affiliate" (as
defined below), (II) any acquisition by any employee benefit plan sponsored or
maintained by the Company or any Affiliate, (III) any acquisition by Quantum
Industrial Partners LDC, Xxxxx Fund Management LLC, and/or SFM Domestic
Investments LLC and/or any of their affiliates (collectively, "Xxxxx"), or (IV)
any acquisition which complies with clauses (A), (B) and (C) of sub-paragraph
(a)(5) hereof ;
(2) Individuals who, on the date hereof,
constitute the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a
director subsequent to the date hereof, whose election or nomination for
election was approved by a vote of at least two-thirds of the Incumbent
Directors then on the Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without written objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially elected or nominated
as a director of the Company as a result of an actual or threatened election
contest with respect to directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any person
other than the Board shall be deemed to be an Incumbent Director;
(3) the dissolution or liquidation of the
Company;
(4) the sale of all or substantially all of the
business or assets of the Company; or
(5) the consummation of a merger, consolidation,
statutory share exchange or similar form of corporate transaction involving the
Company that requires the approval of the Company's stockholders, whether for
such transaction or the issuance of securities in the transaction (a "Business
Combination"), unless immediately following such Business Combination: (A) more
than fifty percent (50%) of the total voting power of (x) the corporation
resulting from such Business Combination (the "Surviving Corporation"), or (y)
if applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of sufficient voting securities eligible to elect a
majority of the directors of the Surviving Corporation (the "Parent
Corporation"), is represented by the Outstanding Company Voting Securities that
were outstanding immediately prior to such Business Combination (or, if
applicable, is represented by shares into which the Outstanding Company Voting
Securities were converted pursuant to such Business Combination), and such
voting power among the holders thereof is in substantially the same proportion
as the voting power of the Company's Voting Securities among the holders thereof
immediately prior to the Business Combination, (B) no Person (other than Xxxxx
or any employee benefit plan sponsored or maintained by the Surviving
Corporation or the Parent Corporation), is or becomes the beneficial owner,
directly or indirectly, of thirty percent (30% ) or more of the total voting
power of the outstanding voting securities
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eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a majority of the
members of the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) following the consummation of the
Business Combination were Board members at the time of the Board's approval of
the execution of the initial agreement providing for such Business Combination.
c. For purposes of this paragraph 8, the term
"Affiliate" shall mean any entity that directly or indirectly is controlled by,
controls or is under common control with the Company.
d. Notwithstanding any provision of this Agreement to
the contrary, in the event of any of the following:
(1) the Company is merged or consolidated with
another corporation or entity and, in connection therewith, consideration is
received by stockholders of the Company in a form other than stock or other
equity interests of the surviving entity;
(2) all or substantially all of the assets of
the Company are acquired by another person;
(3) the reorganization or liquidation of the
Company; or
(4) the Company shall enter into a written
agreement to undergo an event described in clauses (1), (2) or (3) above:
then the Compensation Committee may, in its sole and reasonable discretion and
upon at least 10 business days advance notice to Xxxxx, cancel any outstanding
DSUs and pay to Xxxxx, in cash or stock, or any combination thereof, the value
of such DSUs based upon the price per share of stock received or to be received
by other stockholders of the Company in the event. The terms of this
sub-paragraph 8(c) may be varied by the Compensation Committee in any particular
DSU Award Agreement to which Xxxxx is a party.
e. Reduction of Payments in Certain Cases.
(i) For purposes of this paragraph 8(d) (A) a "Payment"
shall mean any payment or distribution in the nature
of compensation to or for the benefit of Xxxxx,
whether paid or payable pursuant to this Agreement or
otherwise; (B) "Agreement Payment" shall mean a
Payment paid or payable pursuant to this Agreement
(disregarding this paragraph); (C) "Net After Tax
Receipt" shall mean the "Present Value" (as defined
below) of a Payment net all of federal, state and
local taxes imposed on Xxxxx with respect thereto
(including without limitation under Section 4999 of
the Code, determined by applying the highest marginal
rates of such taxes that applied to Barry's taxable
income for the immediately preceding taxable year, or
such other rate(s) as Xxxxx shall in his sole
discretion certify as likely to apply to Xxxxx in the
relevant tax year(s); (D) "Present Value" shall mean
such value determined in accordance with
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Section 280G(d)(4) of the Code; and (E) "Reduced
Amount" shall mean the smallest aggregate amount of
Agreement Payments which (I) is less than the sum of
all Agreement Payments and (II) results in aggregate
Net After Tax Receipts which are equal to or greater
than the Net After Tax Receipts which would result if
the aggregate Agreement Payments were any other
amount less than the sum of all Agreement Payments.
(ii) Anything in this Agreement to the contrary
notwithstanding, in the event that a nationally
recognized certified public accounting firm
designated by the Company (the "Accounting Firm")
shall determine that receipt of all Payments would
subject Xxxxx to tax under Section 4999 of the Code,
it shall determine whether some amount of Agreement
Payments would meet the definition of a "Reduced
Amount." If said firm reasonably determines that
there is a Reduced Amount, the aggregate Agreement
Payments shall be reduced to such Reduced Amount.
(iii) If the Accounting Firm reasonably determines that
aggregate Agreement Payments should be reduced to the
Reduced Amount, the Company shall promptly give Xxxxx
notice to that effect and a copy of the detailed
calculation thereof, and Xxxxx may then elect, in his
sole discretion, which and how much of the Agreement
Payments shall be eliminated or reduced (as long as
after such election the present value of the
aggregate Agreement Payments equals the Reduced
Amount), and shall advise the Company in writing of
his election within ten business days of his receipt
of notice. If no such election is made by Xxxxx
within such ten-day period, the Company may elect
which of such Agreement Payments shall be eliminated
or reduced (as long as after such election the
present value of the aggregate Agreement Payments
equals the Reduced Amount) and shall notify Xxxxx
promptly of such election. All reasonable
determinations made by the Accounting Firm under this
paragraph 8(d) shall be binding upon the Company and
Xxxxx. As promptly as practicable following such
determination, the Company shall pay to or distribute
for the benefit of Xxxxx such Agreement Payments as
are then due to Xxxxx under this Agreement and shall
promptly pay to or distribute for the benefit of
Xxxxx in the future such Agreement Payments as become
due to Xxxxx under this Agreement.
(iv) While it is the intention of the Company and Xxxxx to
reduce the amounts payable or distributable to Xxxxx
hereunder only if the aggregate Net After Tax
Receipts to Xxxxx would thereby be increased, as a
result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is
possible that amounts will have been paid or
distributed by the Company to or for the benefit of
Xxxxx pursuant to this Agreement which should not
have been so paid or distributed ("Overpayment") or
that additional amounts which will have not been paid
or distributed by the Company to or for the
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benefit of Xxxxx pursuant to this Agreement could
have been so paid or distributed ("Underpayment"), in
each case, consistent with the calculation of the
Reduced Amount hereunder. In the event that the
Accounting Firm, based upon the assertion of a
deficiency by the Internal Revenue Service against
either the Company or Xxxxx which the Accounting Firm
reasonably believes has a high probability of success
determines that an Overpayment has been made, then
Xxxxx shall repay to the any such Overpayment to the
Company within ten business days of his receipt of
notice of such Overpayment. In the event that the
Accounting Firm, based upon controlling precedent or
substantial authority, reasonably determines that an
Underpayment has occurred, any such underpayment
shall be promptly paid by the Company to or for the
benefit of Xxxxx.
(v) All fees and expenses of the Accounting Firm in
implementing the provisions of this paragraph 8(d)
shall be borne by the Company.
9. CONFIDENTIALITY; INVENTIONS
x. Xxxxx recognizes that the services to be performed by
him are special, unique and extraordinary in that, by reason of his employment
under this Agreement, he may acquire or has acquired confidential information
and trade secrets concerning the operation of the Company, its predecessors,
and/or its affiliates, the use or disclosure of which could cause the Company,
or its affiliates substantial loss and damages which could not be readily
calculated and for which no remedy at law would be adequate. Accordingly, Xxxxx
covenants and agrees with the Company that he will not, directly or indirectly,
at any time during the term of this Agreement or thereafter, except in the
performance of his obligations to the Company or with the prior written consent
of the Board of Directors or as otherwise required by court order, subpoena or
other government process, directly or indirectly, disclose any secret or
confidential information that he may learn or has learned by reason of his
association with the Company. If Xxxxx shall be required to make such disclosure
pursuant to court order, subpoena or other government process, he shall notify
the Company of the same, by personal delivery or electronic means, confirmed by
mail, within 24 hours of learning of such court order, subpoena or other
government process and, at the Company's expense, shall (i) take all reasonably
necessary and lawful steps required by the Company to defend against the
enforcement of such subpoena, court order or government process, and (ii) permit
the Company to intervene and participate with counsel of its choice in any
proceeding relating to the enforcement thereof. The term "confidential
information" includes, without limitation, information not in the public domain
and not previously disclosed to the public or to the trade by the Company's
management with respect to the Company's or its affiliates' facilities and
methods, studies, surveys, analyses, sketches, drawings, notes, records,
software, computer-stored or disk-stored information, processes, techniques,
research data, marketing and sales information, personnel data, trade secrets
and other intellectual property, designs, design concepts, manuals, confidential
reports, supplier names and pricing, customer names and prices paid, financial
information or business plans.
x. Xxxxx confirms that all confidential information is
and shall remain the exclusive property of the Company. All memoranda, notes,
reports, software, sketches,
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photographs, drawings, plans, business records, papers or other documents or
computer-stored or disk-stored information kept or made by Xxxxx relating to the
business of the Company shall be and will remain the sole and exclusive property
of the Company and shall be promptly delivered and returned to the Company
immediately upon the termination of his employment with the Company.
x. Xxxxx shall make full and prompt disclosure to the
Company of all inventions, improvements, ideas, concepts, discoveries, methods,
developments, software and works of authorship, whether or not copyrightable,
trademarkable or licensable, which are created, made, conceived or reduced to
practice by Xxxxx for the Company during his services with the Company, whether
or not during normal working hours or on the premises of the Company (all of
which are collectively referred to in this Agreement as "Developments"). All
Developments shall be the sole property of the Company, and Xxxxx hereby assigns
to the Company, without further compensation, all of his rights, title and
interests in and to the Developments and any and all related patents, patent
applications, copyrights, copyright applications, trademarks and tradenames in
the United States and elsewhere.
x. Xxxxx shall assist the Company in obtaining,
maintaining and enforcing patent, copyright and other forms of legal protection
for intellectual property in any country. Upon the request of the Company, Xxxxx
shall sign all applications, assignments, instruments and papers and perform all
acts necessary or desired by the Company in order to protect its rights and
interests in any Developments.
x. Xxxxx agrees that any breach of this paragraph 9 will
cause irreparable damage to the Company and that, in the event of such breach,
the Company will have, in addition to any and all remedies of law, including
rights which the Company may have to damages, the right to equitable relief
including, as appropriate, all injunctive relief or specific performance or
other equitable relief. Xxxxx understands and agrees that the rights and
obligations set forth in paragraph 9 shall survive the termination or expiration
of this Agreement.
10. REPRESENTATIONS AND WARRANTIES
x. Xxxxx represents and warrants to the Company that he
was advised to consult with an attorney of Barry's own choosing concerning this
Agreement and that Xxxxx has done so.
x. Xxxxx represents and warrants to the Company that the
execution, delivery and performance of this Agreement by Xxxxx complies with all
laws applicable to Xxxxx or to which his properties are subject and does not
violate, breach or conflict with any agreement by which he or his assets are
bound or affected.
11. GOVERNING LAW; ARBITRATION
This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of New
York, without giving effect to its conflict of law provisions. Except as set
forth below, any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by arbitration in accordance
with the rules of the American Arbitration Association (the "AAA") then
pertaining in the City
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of New York, New York, by a single arbitrator to be mutual agreed upon by the
parties or, if they are unable to so agree, by an arbitrator selected by the
AAA. The parties shall be entitled to a minimal level of discovery as determined
by the arbitrator. The arbitrator shall be empowered to award attorney's fees
and costs to Xxxxx (but not the Company) if he or she deems such award
appropriate. Judgment upon any award rendered by the arbitrator may be entered
in any court having jurisdiction thereof. Nothing contained in this paragraph 11
or the remainder of this Agreement shall be construed so as to deny the Company
the right and power to seek and obtain injunctive relief in a court of equity
for any breach or threatened breach by Xxxxx of the covenants contained in
paragraphs 6 and 9 of this Agreement.
12. INDEMNIFICATION
a. The Company agrees that it shall to the fullest
extent permitted by law indemnify and hold Xxxxx harmless and shall pay and
reimburse Xxxxx for any loss, cost, damage, injury or other expense (including
without limitation reasonable attorneys' fees) which Xxxxx incurs by reason of
being or having been an officer of the Company or by reason of the fact that
Xxxxx is or was serving at the request of the Company as an officer, employee,
fiduciary or other representative of the Company. All indemnification shall be
paid by the Company in advance of the final disposition of the matter (as
incurred by Xxxxx) provided that Xxxxx executes and deliver to the Company an
undertaking to repay any amounts so advanced in the event that it shall be
determined that Xxxxx is not entitled to indemnification hereunder. This
indemnification obligation is in addition to any other indemnification provision
contained in the Company's By-laws or pursuant to any other document, instrument
or agreement and shall survive the term of Barry's employment hereunder.
b. In the event that Xxxxx asserts his right of
indemnification under paragraph 12(a) above, the Company shall have the right to
select Barry's counsel provided that there is no material conflict of interest
between the Company and Xxxxx and provided such counsel is reasonably acceptable
to Xxxxx. Notwithstanding the foregoing, the Company shall have the right to
participate in, or fully control, any proceeding, compromise, settlement,
resolution or other disposition of the claim or proceeding so long as Xxxxx is
provided with a general release from the Company and the claimant in form and
substance reasonably satisfactory to Xxxxx and no restrictions are imposed on
Xxxxx as a result of the settlement.
13. ENTIRE AGREEMENT
This Agreement together with any stock option agreements to which Xxxxx
and the Company are a party contain all of the understandings between Xxxxx and
the Company pertaining to Barry's employment with the Company and supersedes all
undertakings and agreements, whether oral or in writing, previously entered into
between them.
14. AMENDMENT OR MODIFICATION; WAIVER
No provision of this Agreement may be amended or modified unless such
amendment or modification is agreed to in writing, signed by Xxxxx and by an
officer of the Company duly authorized to do so. Except as otherwise
specifically provided in this Agreement, no waiver by either party of any breach
by the other party of any condition or provision of this Agreement to
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be performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent time.
15. NOTICES.
Any notice to be given hereunder shall be in writing and delivered
personally or sent by certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently designate by like notice:
If to the Company, to:
Bluefly, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chairman of Compensation Committee
With a copy to:
Dechert LLP
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
If to Xxxxx, to:
Xxxxxxx X. Xxxxx
c/o Bluefly, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
16. SEVERABILITY
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
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17. TITLES
Titles of the paragraphs of this Agreement are intended solely for
convenience of reference and no provision of this Agreement is to be construed
by reference to the title of any paragraph.
18. DUTY TO MITIGATE
Xxxxx shall not be obligated to seek other employment by way of
mitigation of the amounts payable to him under any provision of this Agreement.
19. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date written below.
BLUEFLY, INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Member of Compensation Committee
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
DATED: November 14, 2006
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