EXHIBIT 99.2
EXECUTION VERSION
SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of all Claims (this
"Agreement") is entered into by and between Bluefly, Inc., a Delaware
Corporation (the "Company"), and E. Xxxxxxx Xxxxx (the "Executive") and
effective as of August 26, 2004 (the "Effective Date").
In consideration of the promises set forth in this Agreement, the
Executive and the Company (the "Parties") hereby agree as follows:
1. Entire Agreement. This Agreement, together with Exhibit A hereto, is the
entire agreement between the Parties with respect to the subject matter hereof
and contains all agreements, whether written, oral, express or implied, between
the Parties relating thereto and supersedes and extinguishes any other agreement
relating thereto, whether written, oral, express or implied, between the
Parties, including, without limitation, the Employment Agreement between the
Parties, dated as of December 31, 2002 (the "Employment Agreement"); provided,
that (i) no rights or obligations established under any such superseded
agreement and specifically preserved by this Agreement are extinguished and (ii)
the Stock Option Agreements between the Company and the Executive dated as of
February 26, 1998; January 22, 1999; December 22, 1999; July 12, 2000; October
12, 2000 (three agreements dated as of such date); December 26, 2002 (two
agreements dated as of such date); January 27, 2003; and February 17, 2004
(collectively, the "Stock Option Agreements") shall survive the Termination Date
and remain in effect in accordance with their terms. Other than this Agreement,
the Stock Option Agreements and as otherwise explicitly stated herein, there are
no agreements of any nature whatsoever between the Executive and the Company
that survive this Agreement. This Agreement may not be modified or amended, nor
may any rights under it be waived, except in a writing signed and agreed to by
the Parties.
2. Termination of Employment. The Parties hereby agree that Executive's
employment and any and all appointments he holds with the Company and any of its
affiliates or subsidiaries (collectively, the "Company Group"), whether as
officer, employee, consultant, agent or otherwise, shall cease as of November
30, 2004 (the "Termination Date"). From the Effective Date through the
Termination Date, the Executive shall serve as an employee of the Company and
shall have responsibility for evaluating the Company's relationships with its
European vendors and providing a written report with respect thereto to the
Company not later than the Termination Date. In addition, the Executive shall
make himself reasonably available during the period beginning on the Effective
Date and ending on the Termination Date to make one business trip of up to two
(2) weeks in duration to Europe in connection with the performance of his duties
hereunder (on which trip the Executive may take one additional agreed-upon
employee of the Company and the cost of which (in respect of both the Executive
and such additional employee), not to exceed $10,000 in total, shall be
reimbursed by the Company in accordance with Section 4.B of this Agreement).
Effective as of the Termination Date, the Executive shall have no authority to
act on behalf of the Company or any other member of the Company Group, and shall
not hold himself out as having such authority or otherwise act in an executive
or other decision making capacity for or on behalf of the Company or any member
of the Company Group. As of the Effective Date, the Executive shall resign, and
cease to serve, as each of the Chief Executive Officer, Treasurer and Chairman
of the Board of Directors of the Company (the
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"Board"), a member of the Board and any other officer position with any member
of the Company Group.
3. Compensation Prior to Termination Date. Subject to the reasonable performance
of the Executive's duties and responsibilities set forth in Section 2 of this
Agreement, from the Effective Date through the Termination Date, the Company
will continue to pay the Executive's annual base salary, at an annual rate equal
to $275,000, in accordance with the Company's usual payroll practices. In
addition, through the Termination Date, the Executive will continue to
participate in the Company's employee benefit plans and arrangements in
accordance with their terms.
4. Entitlements Following Termination Date.
In consideration for the Executive's entering into this Agreement and
subject to Sections 8.D and 10.A of this Agreement, the Company will provide the
Executive with the following compensation and benefits following the Termination
Date, which the Executive acknowledges are in excess of the compensation and
benefits to which he is legally entitled under the Employment Agreement or
otherwise:
A. Salary Continuation Payments. The Company shall continue to pay to the
Executive his base salary at an annual rate equal to $275,000 during the period
beginning on the Termination Date and ending on June 30, 2005 (the "Severance
Period"), and such payments (the "Salary Continuation Payments") shall be made
in accordance with the Company's regular payroll practices. Notwithstanding the
above, payment of the Salary Continuation Payments is conditioned upon the
Executive (i) signing and delivering to the Company, on or about the Termination
Date, a release in the form of Exhibit A hereto (the "Executive General
Release") and (ii) not having revoked the Executive General Release during the
seven-day revocation period applicable thereto. Accordingly, on or about the
Termination Date, the Executive shall execute and deliver to the Company the
Executive General Release.
B. Reimbursement of Expenses Subject to the limitation set forth in
Section 2 above, the Company shall reimburse the Executive for all reasonable
and documented out-of-pocket expenses incurred by the Executive through the
Termination Date in the performance of his services to the Company in accordance
with the expense reimbursement policies of the Company.
C. Benefit Plans. During the period beginning on the Termination Date and
ending on the first anniversary thereof, the Executive shall continue to
participate in the Company's medical, dental and hospitalization plans as in
effect on the Effective Date, and any Company-sponsored life insurance coverage
provided to the Executive on the Effective Date, provided, that the Company may
elect, in lieu of continuing the Executive's participation in any such plan or
coverage, to pay to the Executive the cost of replacement coverage therefore;
provided, further, that the Company may fulfill such obligation in respect of
medical coverage by paying the Executive's premiums under COBRA to the extent
allowed by applicable law and the Executive shall timely elect COBRA coverage if
so requested by the Company. The Company's obligations under this Section 4.C
shall cease upon the Executive becoming eligible for similar benefits with a
subsequent employer.
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D. Incentive Award. Section 4.b of the Employment Agreement shall survive
the Termination Date in accordance with its terms.
E. Existing Equity. The Stock Option Agreements shall survive the
Termination Date in accordance with their terms and the Executive's rights
thereunder, including, without limitation, the vesting and exercisability of the
options subject thereto, shall be governed by the applicable Stock Option
Agreement. The parties acknowledge and agree that (i) each of the options
subject to the Stock Option Agreements shall become fully vested upon the
Termination Date; (ii) the stock options subject to the Stock Option Agreements
dated as of February 26, 1998; January 22, 1999; December 22, 1999; July 12,
2000; and October 12, 2000 shall remain exercisable for the thirty (30) day
period following the Termination Date; and (iii) the stock options subject to
the Stock Option Agreements dated as of December 26, 2002; January 27, 2003; and
February 17, 2004 shall remain exercisable until the first anniversary of the
Termination Date. The stock options represented by the Stock Option Agreements
shall continue to be subject to Section 8.c of the Employment Agreement.
F. Option Award. On the Effective Date, the Company shall grant to the
Executive an Option (the "Option") to purchase 100,000 shares of common stock of
the Company, par value $0.01 per share (each, a "Share"). The Option shall be
fully vested and exercisable upon the Effective Date and shall survive until the
first anniversary of the Termination Date. The Option shall have an exercise
price per share equal to the closing price of a Share on the Effective Date.
5. Return of Company Property. No later than the Termination Date, the Executive
shall return to the Company all originals and copies of papers, notes and
documents (in any medium, including computer disks), whether property of the
Company Group or not, prepared, received or obtained by the Executive or his
counsel during the course of, and in connection with, his employment with the
Company or any member of the Company Group, and all equipment and property of
the Company Group which may be in the Executive's possession or under his
control (other than the cell phone, Apple computer and related peripherals used
by the Executive during his employment, all of which shall become property of
the Executive on the Termination Date), whether at the Company's offices, the
Executive's home or elsewhere, including all such papers, work papers, notes,
documents and equipment in the possession of the Executive and his counsel. The
Executive agrees that he and his family and counsel shall not retain copies of
any such papers, work papers, notes and documents. Notwithstanding the
foregoing, the Executive may retain copies of any employment, compensation,
benefits or shareholders agreements between the Executive and the Company
(including the Stock Option Agreements), this Agreement and any employee benefit
plan materials distributed generally to participants in any such plan by the
Company. On the Termination Date, all telephone and other accounts being paid by
the Company on the Executive's behalf shall be terminated and all company credit
cards shall be returned to the Company and canceled. To the extent any charges
are made by the Executive using company accounts or credit cards after the
Termination Date, such charges will be solely the Executive's responsibility.
6. Survival of Restrictive Covenants. Sections 6 and 9 of the Employment
Agreement shall survive the Termination Date and remain effective for the
periods described therein; provided, that, in consideration of the Company's
execution of this Agreement and the payment of amounts and provision of benefits
hereunder, the "Non-Competition Period" for purposes of
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Section 6 of the Employment Agreement shall be the twenty-four (24) month period
commencing on the Termination Date; provided, that Section 6 of this Agreement
as it relates to Section 6(a)(iv) of the Employment Agreement shall not prohibit
the Executive from employing or retaining, or having or causing any other person
or entity to employ or retain, any person not employed by any member of the
Company Group during the six-month period preceding such conduct (provided that
such conduct does not otherwise violate Section 6 of this Agreement).
7. Nondisparagement; Communications. The Executive hereby agrees not to defame
or disparage any member of the Company Group (including but not limited to any
shareholder of the Company), its products, services, finances, financial
condition, capabilities or other aspect of its business, or any former or
existing employees, managers, directors, officers or agents of, or contracting
parties with, any member of the Company Group in any medium to any person or
entity without limitation in time. Notwithstanding this provision, the Executive
may confer with his legal representative or make truthful statements as required
by law. The Company hereby agrees not to defame or disparage the Executive in
any medium to any person or entity without limitation in time. Notwithstanding
this provision, the Company may confer in confidence with its legal
representative or make truthful statements as required by law. Subject to the
foregoing, the Company shall have sole and complete discretion regarding the
timing, content and any and all aspects of its internal, external and media
communication, including press releases, concerning Executive's employment by
the Company and the termination thereof. The Company and the Executive shall
reasonably agree upon guidelines regarding the substance and extent of any
communications to be made by the Executive regarding his employment by the
Company and the termination thereof, and the Executive shall not participate in
any such communication that violates such guidelines.
8. Acknowledgment and Release by the Executive.
A. In consideration of the Company's execution of this Agreement and the
payment of amounts and provision of benefits hereunder, and except with respect
to the Company's obligations arising under or preserved in this Agreement, the
Executive, for and on behalf of himself and his heirs and assigns, hereby waives
and releases any common law, statutory or other complaints, claims, charges or
causes of action arising out of or relating to the Executive's employment or
termination of employment with, or his serving in any capacity in respect of,
any member of the Company Group, both known and unknown, in law or in equity,
which the Executive may now have or ever had against any member of the Company
Group or any shareholder, employee, director or officer of any member of the
Company Group (collectively, the "Company Releasees"), including, without
limitation, any claim for any severance benefit which but for this Agreement
might have been due the Executive under any previous agreement executed by and
between any member of the Company Group and the Executive, and any complaint,
charge or cause of action arising out of his employment with the Company Group
under the Age Discrimination in Employment Act of 1967 ("ADEA," a law which
prohibits discrimination on the basis of age), the National Labor Relations Act,
the Civil Rights Act of 1991, the Americans With Disabilities Act of 1990, Title
VII of the Civil Rights Act of 1964 and the Employee Retirement Income Security
Act of 1974, all as amended; and all other federal, state and local laws. By
signing this Agreement the Executive acknowledges that he intends to waive and
release any rights known or unknown he may have against the Company Releasees
under these laws.
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B. The Executive acknowledges that he has not filed any complaint,
charge, claim or proceeding against any of the Company Releasees before any
local, state or federal agency, court or other body relating to his employment
or the resignation thereof (each individually a "Proceeding"). The Executive
represents that he is not aware of any basis on which such a Proceeding could
reasonably be instituted. The Executive (i) acknowledges that he will not
initiate or cause to be initiated on his behalf any Proceedings and will not
participate in any Proceeding, in each case, except as required by law; and (ii)
waives any right he may have to benefit in any manner from any relief (whether
monetary or otherwise) arising out of any Proceeding, including any Proceeding
conducted by the Equal Employment Opportunity Commission ("EEOC"). Further, the
Executive understands that by entering into this Agreement, he will be limiting
the availability of certain remedies that he may have against the Company and
limiting also his ability to pursue certain claims against the Company
Releasees. Notwithstanding the above, nothing in this Section 8 shall prevent
the Executive from (i) initiating or causing to be initiated on his behalf any
complaint, charge, claim or proceeding against the Company before any local,
state or federal agency, court or other body challenging the validity of the
waiver of his claims under ADEA contained in Section 8.A. of this Agreement (but
no other portion of such waiver); (ii) initiating or participating in an
investigation or proceeding conducted by the EEOC with respect to ADEA; or (iii)
initiating a proceeding solely for the purpose of enforcing his rights under
this Agreement.
C. The Executive acknowledges that he has been given twenty-one (21) days
from the date of receipt of this Agreement to consider all the provisions of
this Agreement and he does hereby knowingly and voluntarily waive said given
twenty-one (21) day period. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ
THIS AGREEMENT CAREFULLY, HAS BEEN ADVISED BY THE COMPANY TO CONSULT AN
ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN
RIGHTS WHICH HE MAY HAVE TO XXX OR ASSERT A CLAIM AGAINST ANY OF THE COMPANY
RELEASEES, AS DESCRIBED IN THIS SECTION 8 AND THE OTHER PROVISIONS HEREOF. THE
EXECUTIVE ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER
WHATSOEVER TO SIGN THIS AGREEMENT AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS
VOLUNTARILY.
D. The Executive shall have seven days from the date of his execution of
this Agreement to revoke this Agreement, including the release given under this
Section 8 with respect to all claims referred to herein (including, without
limitation, any and all claims arising under ADEA). Notwithstanding any other
provision of this Agreement, if the Executive revokes this Agreement including,
without limitation, the release given under this Section 8, the Executive will
be deemed not to have accepted the terms of this Agreement, including any action
required of the Company by any Section of this Agreement.
9. Acknowledgment and Release by the Company.
A. In consideration of the Executive's execution of this Agreement, and
except with respect to the Executive's obligations arising under or preserved in
this Agreement, the Company, for and on behalf of itself and its successors and
assigns, hereby waives and releases any common law, statutory or other
complaints, claims, charges or causes of action arising out of
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or relating to the Executive's employment or termination of employment with, or
his serving in any capacity in respect of, any member of the Company Group, both
known and unknown, in law or in equity, which the Company may now have or ever
had against Executive and his heirs, successors or assigns (collectively, the
"Executive Releasees"); provided, that the Company does not waive or release any
claim hereunder with respect to any felony or misdemeanor by the Executive which
causes demonstrable harm to any member of the Company Group.
B. The Company acknowledges that it has not filed any complaint, charge,
claim or proceeding against the Executive before any local, state or federal
agency, court or other body relating to the Executive's employment or the
termination thereof (each individually a "Company Proceeding"). The Company
represents that it is not aware of any basis on which such a Company Proceeding
could reasonably be instituted. The Company (i) acknowledges that it will not
initiate or cause to be initiated on its behalf any Company Proceedings and will
not participate in any Company Proceeding, in each case, except as required by
law; and (ii) waives any right it may have to benefit in any manner from any
relief (whether monetary or otherwise) arising out of any Company Proceeding.
Further, the Company understands that by entering into this Agreement, it will
be limiting the availability of certain remedies that it may have against the
Executive and limiting also its ability to pursue certain claims against the
Executive Releasees.
C. The Company acknowledges that it has been given twenty-one (21) days
from the date of receipt of this Agreement to consider all the provisions of
this Agreement and it does hereby knowingly and voluntarily waive said given
twenty-one (21) day period. THE COMPANY FURTHER ACKNOWLEDGES THAT IT HAS READ
THIS AGREEMENT CAREFULLY, HAS CONSULTED AN ATTORNEY, AND FULLY UNDERSTANDS THAT
BY SIGNING BELOW IT IS GIVING UP CERTAIN RIGHTS WHICH IT MAY HAVE TO XXX OR
ASSERT A CLAIM AGAINST THE EXECUTIVE AND THAT IT IS ENTERING INTO THIS AGREEMENT
VOLUNTARILY.
10. Availability of Relief.
A. Notwithstanding any other provision of this Agreement, in the event
that the Executive receives notice in writing from the Company of any material
breach of Section 6 or 9 of this Agreement by the Executive and the Executive
cures such breach within ten (10) days of the date he receives such notice, then
the Company will continue the benefits or payments that are subsequently due
under Sections 4.A, 4.B, 4.C or 4.D of this Agreement; provided, that, the
Executive shall not be entitled to such payments or benefits for periods during
which he is in material breach of Section 6 or 9 of this Agreement; provided,
further, that the Company shall have no further obligation to provide such
payments and benefits if the Executive fails to so cure such material breach.
B. The Executive acknowledges and agrees that the remedy at law available
to the Company for breach of any of his post-termination obligations under this
Agreement, including but not limited to his obligations under Sections 6, 7 and
8 of this Agreement, would be inadequate and that damages flowing from such a
breach may not readily be susceptible to being measured in monetary terms.
Accordingly, the Executive acknowledges, consents and agrees that, in addition
to any other rights or remedies which the Company may have at law, in equity or
under this Agreement, upon adequate proof of his violation of any such provision
of this
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Agreement, the Company shall be entitled to immediate injunctive relief and may
obtain a temporary order restraining any threatened or further breach, without
the necessity of proof of actual damage and without any requirement of posting a
bond.
11. Representations; Warranties; Covenants.
The Company represents and warrants to the Executive that it: (i) has all
requisite legal and corporate power to execute and deliver this Agreement and to
carry out and perform its obligations under the terms of this Agreement; (ii)
all corporate action on the part of the Company, its officers, directors and
shareholders necessary for the authorization, execution and delivery of this
Agreement, the performance of all the Company's obligations hereunder has been
taken; and (iii) this Agreement, when executed and delivered, shall constitute
valid and legally binding obligations of the Company enforceable in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies. The Company agrees
that on the Termination Date it shall execute and deliver to Executive a general
release substantially in the form of Exhibit A attached hereto.
12. Miscellaneous.
A. Notices. Any notice given pursuant to this Agreement to any party
hereto shall be deemed to have been duly given when mailed by registered or
certified mail, return receipt requested, or by overnight courier, or when hand
delivered as follows:
If to the Company:
Bluefly, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
With a copy to:
Xxxxx Private Equity Partners
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
If to the Executive:
E. Xxxxxxx Xxxxx 000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, XX 00000
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With a copy to:
Xxxx X. Xxxxx
Xxxxx, Xxxxx & Abercrombie
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or at such other address as either party shall from time to time designate by
written notice, in the manner provided herein, to the other party hereto.
B. Successor. This Agreement shall be binding upon and inure to the
benefit of the Parties, their respective heirs, successors and assigns.
C. Taxes. The Executive shall be responsible for the payment of any and
all required federal, state, local and foreign taxes incurred, or to be
incurred, in connection with any amounts payable to the Executive under this
Agreement. Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws and
regulations.
D. Severability. In the event that any provision of this Agreement is
determined to be invalid or unenforceable, the remaining terms and conditions of
this Agreement shall be unaffected and shall remain in full force and effect. In
addition, if any provision is determined to be invalid or unenforceable due to
its duration and/or scope, the duration and/or scope of such provision, as the
case may be, shall be reduced, such reduction shall be to the smallest extent
necessary to comply with applicable law, and such provision shall be
enforceable, in its reduced form, to the fullest extent permitted by applicable
law.
E. Non-Admission. Nothing contained in this Agreement shall be deemed or
construed as an admission of wrongdoing or liability on the part of the
Executive or on the part of the Company.
F. No Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for pursuant to this Agreement by seeking other
employment and, to the extent that the Executive obtains or undertakes other
employment, the payment will not be reduced by the earnings of the Executive
from the other employment.
G. Governing Law/Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
wholly made and performed in such state. Any dispute regarding this Agreement
shall be heard before a federal or state court sitting in the Borough of
Manhattan of the City of New York. In the event that the Executive brings any
action to enforce his rights hereunder and he prevails in such action, the
Company shall pay the Executive's reasonable and documented attorney's fees and
costs in connection therewith. Except as provided in the immediately preceding
sentence, each of the Parties shall be responsible for the payment of its own
costs and expenses, including attorney fees, in the event of such a dispute.
H. Indemnification; Reduction of Payments. Section 12 of the Employment
Agreement shall survive the Termination Date in accordance with its terms.
Section 8.d of the Employment
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Agreement shall survive the Termination Date in accordance with its terms;
provided, that any payments, benefits and stock option vesting acceleration
provided under this Agreement shall be considered an "Agreement Payment" for
purposes of such Section.
I. Counterparts. This Agreement may be executed by one or more of the
Parties hereto on any number of separate counterparts and all such counterparts
shall be deemed to be one and the same instrument. Each party hereto confirms
that any facsimile copy of such party's executed counterpart of this Agreement
(or its signature page thereof) shall be deemed to be an executed original
thereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first written above.
BLUEFLY, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
EXECUTIVE
/s/ E. Xxxxxxx Xxxxx
-------------------------------------
EXHIBIT A
GENERAL EXECUTIVE RELEASE AND WAIVER
Reference is made to that certain Separation Agreement and General
Release (the "Separation Agreement") entered into as of _________, 2004, by and
between Bluefly, Inc. (the "Company") and E. Xxxxxxx Xxxxx (the "Executive").
Capitalized terms not defined herein shall have the meaning ascribed to such
terms in the Separation Agreement. The Termination Date is November 30, 2004.
FOR GOOD AND VALUABLE CONSIDERATION, as set forth in the Separation
Agreement (which is incorporated herein by reference as if set forth fully
herein and made a part hereof), the receipt, sufficiency and adequacy of which
is hereby acknowledged by the Executive's signature below, the Executive agrees
as follows:
1. Acknowledgment and Release by the Executive.
A. In partial consideration of the Company's execution of the Separation
Agreement and the payment of amounts and provision of benefits thereunder, and
except with respect to the Company's obligations arising under or preserved in
this Release or the Separation Agreement, the Executive, for and on behalf of
himself and his heirs and assigns, hereby waives and releases any common law,
statutory or other complaints, claims, charges or causes of action arising out
of or relating to the Executive's employment or termination of employment with,
or his serving in any capacity in respect of, any member of the Company Group,
both known and unknown, in law or in equity, which the Executive may now have or
ever had against any member of the Company Group or any shareholder, employee,
director or officer of any member of the Company Group (collectively, the
"Company Releasees"), including, without limitation, any claim for any severance
benefit which but for the Separation Agreement and this General Executive
Release and Waiver (this "Release") might have been due the Executive under any
previous agreement executed by and between any member of the Company Group and
the Executive, and any complaint, charge or cause of action arising out of his
employment with the Company Group under the Age Discrimination in Employment Act
of 1967 ("ADEA," a law which prohibits discrimination on the basis of age), the
National Labor Relations Act, the Civil Rights Act of 1991, the Americans With
Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964 and the
Employee Retirement Income Security Act of 1974, all as amended; and all other
federal, state and local laws. By signing this Release the Executive
acknowledges that he intends to waive and release any rights known or unknown he
may have against the Company Releasees under these laws.
B. The Executive acknowledges that he has not filed any complaint,
charge, claim or proceeding against any of the Company Releasees before any
local, state or federal agency, court or other body relating to his employment
or the resignation thereof (each individually a "Proceeding"). The Executive
represents that he is not aware of any basis on which such a Proceeding could
reasonably be instituted. The Executive (i) acknowledges that he will not
initiate or cause to be initiated on his behalf any Proceedings and will not
participate in any Proceeding, in each case, except as required by law; and (ii)
waives any right he may have to benefit in any manner from any relief (whether
monetary or otherwise) arising out of any Proceeding, including any Proceeding
conducted by the Equal Employment Opportunity
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Commission ("EEOC"). Further, the Executive understands that by entering into
this Release, he will be limiting the availability of certain remedies that he
may have against the Company and limiting also his ability to pursue certain
claims against the Company Releasees. Notwithstanding the above, nothing in this
Section 1 shall prevent the Executive from (i) initiating or causing to be
initiated on his behalf any complaint, charge, claim or proceeding against the
Company before any local, state or federal agency, court or other body
challenging the validity of the waiver of his claims under ADEA contained in
this Section 1.A (but no other portion of such waiver); (ii) initiating or
participating in an investigation or proceeding conducted by the EEOC with
respect to ADEA; or (iii) initiating a proceeding solely for the purpose of
enforcing his rights under the Separation Agreement or this Release.
C. The Executive acknowledges that he has been given twenty-one (21) days
from the Termination Date to consider all the provisions of this Release and he
does hereby knowingly and voluntarily waive said given twenty-one (21) day
period. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS READ THIS RELEASE
CAREFULLY, HAS BEEN ADVISED BY THE COMPANY TO CONSULT AN ATTORNEY, AND FULLY
UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN RIGHTS WHICH HE MAY
HAVE TO XXX OR ASSERT A CLAIM AGAINST ANY OF THE COMPANY RELEASEES, AS DESCRIBED
IN THIS SECTION 1 AND THE OTHER PROVISIONS HEREOF. THE EXECUTIVE ACKNOWLEDGES
THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS
RELEASE AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
D. The Executive shall have seven days from the date of his execution of
this Release to revoke this Release, including the release given under this
Section 1 with respect to all claims referred to herein (including, without
limitation, any and all claims arising under ADEA). Notwithstanding any other
provision of this Release, if the Executive revokes this Release the Executive
will be deemed not to have accepted the terms of this Release, including any
action required of the Company by any section of this Release or the Separation
Agreement.
2. Acknowledgment and Release by the Company.
A. In partial consideration of the Executive's execution of the
Separation Agreement, and except with respect to the Executive's obligations
arising under or preserved in this Release or the Separation Agreement, the
Company, for and on behalf of itself and its successors and assigns, hereby
waives and releases any common law, statutory or other complaints, claims,
charges or causes of action arising out of or relating to the Executive's
employment or termination of employment with, or his serving in any capacity in
respect of, any member of the Company Group, both known and unknown, in law or
in equity, which the Company may now have or ever had against Executive and his
heirs, successors or assigns (collectively, the "Executive Releasees");
provided, that the Company does not waive or release any claim hereunder with
respect to any felony or misdemeanor by the Executive which causes demonstrable
harm to any member of the Company Group.
B. The Company acknowledges that it has not filed any complaint, charge,
claim or proceeding against the Executive before any local, state or federal
agency, court or other body
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relating to the Executive's employment or the termination thereof (each
individually a "Company Proceeding"). The Company represents that it is not
aware of any basis on which such a Company Proceeding could reasonably be
instituted. The Company (i) acknowledges that it will not initiate or cause to
be initiated on its behalf any Company Proceedings and will not participate in
any Company Proceeding, in each case, except as required by law; and (ii) waives
any right it may have to benefit in any manner from any relief (whether monetary
or otherwise) arising out of any Company Proceeding. Further, the Company
understands that by entering into this Release, it will be limiting the
availability of certain remedies that it may have against the Executive and
limiting also its ability to pursue certain claims against the Executive
Releasees.
C. The Company acknowledges that it has been given twenty-one (21) days
from the date of receipt of this Release to consider all the provisions of this
Release and it does hereby knowingly and voluntarily waive said given twenty-one
(21) day period. THE COMPANY FURTHER ACKNOWLEDGES THAT IT HAS READ THIS RELEASE
CAREFULLY, HAS CONSULTED AN ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING
BELOW IT IS GIVING UP CERTAIN RIGHTS WHICH IT MAY HAVE TO XXX OR ASSERT A CLAIM
AGAINST THE EXECUTIVE AND THAT IT IS ENTERING INTO THIS RELEASE VOLUNTARILY.
3. No Admission. This Release does not constitute an admission of liability or
wrongdoing of any kind by the Executive or the Company.
4. General Provisions.
A. Other than as specifically stated in the Separation Agreement, the
Release, when executed, and the Separation Agreement, contain the entire
agreement between the Executive and the Company Group on the subject matter
hereof, and there are no other understandings or agreements, written or oral,
between them on the subject matter hereof. Except for the Separation Agreement
(and as otherwise specifically stated therein), the Release fully supersedes and
replaces any and all prior agreements or understandings, if any, between the
Executive and the Company Group. The Release may not be changed or altered,
except in a written document signed by an authorized representative of the
Parties.
B. A failure of the Company Group or the Executive to insist on strict
compliance with any provision of the Release shall not be deemed a waiver of
such provision or any other provision hereof. If any provision of the Release is
determined to be so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable, and in the event that any
provision is determined to be entirely unenforceable, such provision shall be
deemed severable, such that all other provisions of the Release shall remain
valid and binding upon the Executive and the Releasees.
C. The Release shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts wholly made and performed
in such state. Any dispute regarding the Release shall be heard before a federal
or state court sitting in the Borough of Manhattan of the City of New York. Each
of the Executive and the Releasees shall be responsible for the payment of its
own costs and expenses, including attorney fees, in the event of such a dispute.
4
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand as of the day and year set forth opposite his signature below.
Dated: ______________________ ---------------------------------
E. XXXXXXX XXXXX
BLUEFLY, INC.
Dated: ______________________ By:
---------------------------------
Name:
Title:
