EXHIBIT 10.1
Portions of this exhibit have beeen omitted pursuant to a request
for
confidential treatment. The omitted portions, marked "[***]," have
been
separately filed with the Securities and Exchange Commission.
November 19, 2008
Fulfillment Technologies, LLC
5389 East Provident Drive
Cincinnati, Ohio 45246
Gentlemen:
Reference is made to that certain Fulfillment Services Agreement
(the
"Existing Agreement"), dated on or about April 11, 2007, by and
between
Fulfillment Technologies, LLC ("FillTek") and Bluefly, Inc.
("Bluefly"), as the
same may have been amended through and including the date hereof.
Capitalized
terms used and not defined herein shall have the meanings ascribed
to such terms
in the Agreement.
This
letter agreement (this "Agreement") is intended to memorialize
certain
amendments to the terms of the Existing Agreement, to be effective
as of [***]
and to remain in effect for the remainder of the term of the
Agreement (the
"Effective Period"):
1.
In lieu of any per
order amounts otherwise due under the Agreement,
Bluefly will pay FillTek a flat fee as set forth in the table
below
for each order shipped during the Effective Period, subject to
adjustment as set forth in Paragraphs 2,3, and 4 (the "Flat
Fee"):
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------
Effective Dates
Flat Fee Per Order
---------------
------------------
----------------------------------------------------------------------------------------------------
<S>
<C>
Orders shipped from [***] through and
$[***] (provided that, until such time as Bluefly
including [***]
completes the Returns Processing IT Work (as
hereinafter defined), the Flat Fee during this
period shall be $[***])
----------------------------------------------------------------------------------------------------
Orders shipped from [***] through and
$[***]
including [***]
----------------------------------------------------------------------------------------------------
Orders shipped on or after [***]
$[***]
----------------------------------------------------------------------------------------------------
</TABLE>
For purposes of the above, the "Returns Processing IT Work" shall
mean
the performance of the following by Bluefy [***]. If Bluefly fails
to
complete the
<PAGE>
Portions of this exhibit have beeen omitted pursuant to a request
for
confidential treatment. The omitted portions, marked "[***]," have
been
separately filed with the Securities and Exchange Commission.
Returns Processing IT Work by [***], $[***] per order will be added
to
the current Flat Fee per Order until such work is completed.
To the extent that any order is split into two or more shipments,
only
one Flat Fee will be due for all shipments under that order. This
Flat
Fee will remain in effect regardless of whether FillTek's actual
costs
per order are less than the Flat Fee (in which case FillTek will
be
entitled to retain the difference) or exceed the Flat Fee (in
which
case FillTek will be responsible for the difference).
2.
The parties accept and
acknowledge that pricing is based solely on the
assumptions set forth in the table below. The parties agree that
the
provisions of this Section 2 shall replace Note 1 to Exhibit C of
the
Existing Agreement and the Assumed Order Fulfillment
Assumptions
referred to therein.
The parties will review the previous twelve (12) months' activity
on
December 31, 2009 and December 31, 2010 (each, a "Measurement
Date").
If, as of a Measurement Date, the actual activity for one or more
of
the factors described in the table below falls outside the
corresponding minimum and maximum assumptions by more than [***]
for
the calendar year then ended, then, during the next calendar year,
(a)
there will be no reduction in the Flat Fee, (b) Bluefly and
FillTek
agree to an increase of $[***] per order and (c) Bluefly will pay
an
additional amount per order equal to the Per Order Catch Up Fees
(as
hereinafter defined) until such time as the aggregate Per Order
Catch
Up Fees paid pursuant to this clause (c) equals the Catch Up
Amount
(as hereinafter defined).
For purposes of this Section 2:
"Catch Up Amount" means, for a calendar year in which one or
more
of the factors described in the table below falls outside the
corresponding minimum and maximum assumptions by more than
[***],
the product obtained by multiplying (i) $[***] by (ii) the
total
number of orders processed from [***] to [***]of such calendar
year.
"Per Order Catch Up Fees" means, for a calendar year, the
quotient obtained by dividing (i) the Catch Up Amount for the
previous calendar year, if any, by (ii) the total number of
orders processed during the previous calendar year.
<PAGE>
Portions of this exhibit have beeen omitted pursuant to a request
for
confidential treatment. The omitted portions, marked "[***]," have
been
separately filed with the Securities and Exchange Commission.
<TABLE>
<CAPTION>
Description
2009
2010
2011
-----------
----
----
----
<S>
<C
