EXHIBIT 10.46
AMENDMENT NO. 1 TO
EMPLOYMENT
AGREEMENT
This AMENDMENT
NO. 1 TO THE EMPLOYMENT AGREEMENT, effective as of December 18,
2008 (“Amendment No. 1”), is by and between Melissa
Payner-Gregor (“Payner”) and Bluefly, Inc. (the
“Company”).
Capitalized
terms used in this Amendment No. 1 that are not otherwise defined
herein shall have the same meaning as such terms are defined in the
Amended and Restated Employment Agreement between the Company and
Payner, dated as of July 1, 2006 (the
“Agreement”).
WHEREAS, the
parties entered into the Agreement under which the parties agreed
upon the terms pursuant to which Payner would provide services to
the Company as further described therein, and
WHEREAS, the
Company and Payner desire to amend the Agreement to comply with the
final regulations issued under Section 409A of the Internal Revenue
Code of 1986, as amended.
NOW THEREFORE,
the parties hereby agree to amend the Agreement, effective as of
the date set forth above, as follows:
1. Section
4(a) is hereby amended and restated in its entirety to read as
follows:
“
Incentive Compensation . For each fiscal year
during the Term, Payner shall be eligible to receive a performance
bonus as follows: provided that Payner remains employed with the
Company at the time that bonuses are awarded, Payner will be
eligible to earn a performance bonus for each fiscal year in an
amount to be set by the Compensation Committee of the Board of
Directors in its sole discretion.”
2. Section
7(a)(iii) is hereby amended and restated in its entirety to read as
follows:
“(iii) a ‘Constructive
Termination’ by the Company during the Employment Term,
which, for
