8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported: April 10, 2008): April 11, 2008

NEW YORK & COMPANY, INC.

(Exact name of registrant as specified in its charter)

DELAWARE	1-32315	33-1031445
(State or other jurisdiction of	(Commission File Number)	(IRS Employer Identification No.)
incorporation)

450 West 33^rd Street

5^th Floor

New York, New York 10001

(Address of Principal executive offices, including  Zip Code)

(212) 884-2000

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02  Departure of Directors or Certain Officers;  Election of Directors;  Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On April 10, 2008, each of Richard P. Crystal’s and Ronald W. Ristau’s Second Amended and Restated Employment Agreement, dated August 25, 2004 was amended.  The amendments provide for, among other matters, the executives’ target bonus under the Company’s incentive compensation plan to be payable once in relation to the Company’s operating income for first and second fiscal quarters (the “Spring Bonus”), and once both in relation to the Company’s operating income for third and fourth fiscal quarters (the “Fall Bonus”) and in relation to the Company’s operating income for the full fiscal year (“Full Year Bonus”).  Prior to such amendment, the executives’ target bonus was payable once in relation to Spring operating income and once in relation to Fall operating income, but not in relation to full year operating income.

In addition, the amendments increase the target operating income levels related to the Spring Bonus and the Fall Bonus for the current fiscal year (“fiscal year 2008”).  Subsequent to fiscal year 2008, the target operating income levels are based on the growth rates set forth in each of Mr. Crystal’s and Mr. Ristau’s Second Amended and Restated Employment Agreement, dated August 25, 2004.

The April 10, 2008 amendments are attached hereto as Exhibits 10.3 and 10.5 and are incorporated herein by reference.  Also attached hereto as Exhibits are: Amendment No.1 to each of Mr. Crystal’s and Mr. Ristau’s employment agreements, which address certain matters related to Section 409A of the Internal Revenue Code; and Amendment No. 2 to Mr. Crystal’s employment agreement, which reflect Mr. Crystal’s title change to Chairman and Chief Executive Officer.

Item 9.01 Financial Statements and Exhibits

(d)  Exhibit

Exhibit No.	Description
10.1	Amendment No. 1 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on December 22, 2006.
10.2	Amendment No. 2 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on May 4, 2007.
10.3	Amendment No. 3 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on April 10, 2008.
10.4	Amendment No. 1 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Ronald W. Ristau, as amended on December 22, 2006.
10.5	Amendment No. 2 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Ronald W. Ristau, as amended on April 10, 2008.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	NEW YORK & COMPANY, INC.
		/s/ Ronald W. Ristau
Date: April 11, 2008	Name:	Ronald W. Ristau
	Title:	President and
		Chief Financial Officer

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EXHIBIT INDEX

Exhibit No.	Description
10.1	Amendment No. 1 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on December 22, 2006.
10.2	Amendment No. 2 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on May 4, 2007.
10.3	Amendment No. 3 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on April 10, 2008.
10.4	Amendment No. 1 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Ronald W. Ristau, as amended on December 22, 2006.
10.5	Amendment No. 2 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Ronald W. Ristau, as amended on April 10, 2008.

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EX-10.1

Exhibit 10.1

AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Amendment (this “Amendment”), made as of December 22, 2006, by and among New York & Company, Inc. (the “Company”), Lerner New York, Inc. (“Lerner”) and Richard Crystal (“Executive”).

R E C I T A L S

WHEREAS, Executive is party to that certain Second Amended and Restated Employment Agreement by and among the Company, Lerner and Executive dated August 25, 2004 (the “Agreement”).

WHEREAS, the Company, Lerner and Executive wish to amend the Agreement to clarify treatment of certain payments under the Agreement in order to make them compliant with Section 409A of the Internal Revenue Code of 1986, as amended.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following:

1.Amendment.

(a)A new Section 9(f) shall be added to the Agreement as follows:

“Severance Pay of Key Employee.  If on the date of Executive’s termination of employment by the Company: (i) a distribution of compensation to which Executive becomes entitled under this Agreement upon termination of employment (including but not limited to severance or other termination benefits) would be “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations issued thereunder, including Proposed Regulation Section 1.409A-1(b)(9)(iii) (or any successor provision), which describes certain separation pay arrangements that do not provide for the deferral of compensation, and (ii) Executive is a “key employee”, as defined in Code Section 416(i) without regard to paragraph (5) thereof, then such distribution shall not be made before the date which is six months after the date of termination of employment (or, if earlier, Executive’s death).  All distributions to which Executive otherwise would be entitled during such period shall be made on the date which is six months after the date of termination of employment (or, if earlier, death).  Any distributions thereafter owed to Executive under this Agreement will be made in accordance with the Company’s normal payroll policies and procedures.”

(b)A new Section 10 shall be added to the Agreement immediately following Section 9 as follows:

“Application of Code Section 409A.  It is the Company’s intent that compensation and benefits to which Executive is entitled under this Agreement not be treated as “nonqualified deferred compensation” under Code Section 409A (or any regulations or other guidance promulgated thereunder) and that any ambiguities in the construction of this Agreement be interpreted in order to effectuate such intent.  In the event that the Company determines, in its sole discretion, that any compensation or benefits to which Executive is entitled under this Agreement could be treated as “nonqualified deferred compensation” under Code Section 409A unless this Agreement is amended or modified, the Company may, in its sole discretion, amend or modify this Agreement without obtaining any additional consent from Executive, so long as such amendment or modification does not materially affect the net present value of the compensation or benefits to which Executive otherwise would be entitled under this Agreement.”

(c)All section references thereafter shall be updated to reflect the above additions.

2.Agreement Otherwise Unchanged.  All other provisions of the Agreement shall remain in full force and effect.

3.Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of law principals thereof.

4.Counterparts. This Amendment may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.

5.Waiver of Jury Trial. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto.

*   *   *   *   *

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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date and year first written above.

NEW YORK & COMPANY, INC.

By: /s/ Ronald W. Ristau

Name: Ronald W. Ristau

Chief Operating Officer

LERNER NEW YORK, INC.

By: /s/ Ronald W. Ristau

Name: Ronald W. Ristau

Chief Operating Officer

/s/ Richard P. Crystal

RICHARD P. CRYSTAL

EX-10.2

Exhibit 10.2

AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Amendment (this “Amendment”), made as of May 4, 2007, by and among New York & Company, Inc. (the “Company”), Lerner New York, Inc. (“Lerner”) and Richard Crystal (“Executive”).

R E C I T A L S

WHEREAS, Executive is party to that certain Second Amended and Restated Employment Agreement by and among the Company, Lerner and Executive dated August 25, 2004, as amended as of December 22, 2006 (the “Agreement”).

WHEREAS, the Company, Lerner and Executive wish to amend the Agreement to acknowledge mutually agreed upon changes to Executive’s titles.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following:

1.Amendment.

(a)Section 2(a) shall be amended and restated in its entirety as follows:

“Position.  Executive shall be employed as the Chairman and Chief Executive Officer of Holdings and of the Company.  Executive shall perform the duties, undertake the responsibilities and exercise the authority customarily performed, undertaken and exercised by persons employed in a similar executive capacity.  Executive shall report to Holdings’ Board of Directors (the “Board”), (including, with respect to compensation matters, any compensation committee of the Board). For so long as Executive is the Chairman and Chief Executive Officer of Holdings or the Company, Holdings shall nominate Executive for membership on the Board as Chairman of the Board.”

(b)The first clause of the definition of “Good Reason” in Section 8(d) of the Agreement shall be amended and restated in its entirety as follows:

“(i) the demotion of Executive to a position not comparable to Chairman and Chief Executive Officer of Holdings or the Company;”

2.Agreement Otherwise Unchanged.  All other provisions of the Agreement shall remain in full force and effect.

3.Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of law principals thereof.

4.Counterparts. This Amendment may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.

5.Waiver of Jury Trial. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto.

*   *   *   *   *

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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date and year first written above.

NEW YORK & COMPANY, INC.
By:	/s/ Ronald W. Ristau
Name:		Ronald W. Ristau
President and Chief Financial Officer
LERNER NEW YORK, INC.
By:	/s/ Ronald W. Ristau
Name:		Ronald W. Ristau
President, Chief Financial Officer and Secretary
/s/ Richard P. Crystal
RICHARD P. CRYSTAL

EX-10.3

Exhibit 10.3

AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Amendment (this “Amendment”), made as of April 10, 2008, by and among New York & Company, Inc. (the “Company”), Lerner New York, Inc. (“Lerner”) and Richard Crystal (“Executive”).

R E C I T A L S

WHEREAS, Executive is party to that certain Second Amended and Restated Employment Agreement by and among the Company, Lerner and Executive dated August 25, 2004, as amended as of December 22, 2006 and May 4, 2007 (the “Agreement”).

WHEREAS, the Company, Lerner and Executive wish to amend the Agreement to acknowledge certain mutually agreed upon changes to Executive’s bonus compensation.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following:

1.Amendment.

(a)Section 4(b) shall be amended and restated in it’s entirety as follows:

“(b)         Bonuses, to the extent earned, shall be payable semi-annually by Holdings, once in relation to the Company’s results for Holdings’ first and second fiscal quarters (the “Spring Bonus”), and once both in relation to the Company’s results for Holdings’ third and fourth fiscal quarters (the “Fall Bonus”) and in relation to the Company’s results for Holdings’ full fiscal year (the “Full Year Bonus”).  As used herein, the period for the Spring Bonus, the period for the Fall Bonus and the period for the Full Year Bonus are each referred to as a “Bonus Period”.  Executive’s Bonus shall be based upon the attainment of certain Operating Income targets for such Bonus Period (each, a “Target”).  Executive’s Bonus for each Bonus Period shall equal (A) for the Spring Bonus, the product of 38.5% of Executive’s Base Salary (“Spring Target Bonus”), multiplied by the Applicable Bonus Percentage (as defined below), (B) for the Fall Bonus, the product of 49.5% of Executive’s Base Salary (“Fall Target Bonus”), multiplied by the Applicable Bonus Percentage (as defined below) and (C) for the Full-Year Bonus, the product of 22.0% of Executive’s Base Salary (“Full-Year Target Bonus”), multiplied by the Applicable Bonus Percentage (as defined below).”

(b)Section 4(c) shall be amended to add the words “, Section 4(e), Section 4(f) and Section 4(g)” after the words “Section 4(d)” in the first sentence.

(c)New Sections 4(e), 4(f) and 4(g) shall be inserted after Section 4(d) as follows:

(e)            For the purposes of Section 4(b) above, for the 2008 Spring Bonus only, the “Applicable Bonus Percentage” shall be calculated as follows (provided, that in the event of any business acquisition or disposition in such Bonus Period, the Target shall be adjusted as the Board reasonably determines appropriate):

(i)If Operating Income for the Bonus Period in question is less than Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 0%;

(ii)If Operating Income for the Bonus Period in question is equal to Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0%;

(iii)If Operating Income for the Bonus Period in question is greater than Operating Income for the same Bonus Period in the prior year but less than 139.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0% plus, for each 1% increase in Operating Income over the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 0.7692% (e.g., for an Operating Income increase in the Bonus Period in question of 103.0% the Applicable Bonus Percentage shall be equal to 22.3%);

(iv)If Operating Income for the Bonus Period in question is equal to 139.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0%;

(v)If Operating Income for the Bonus Period in question is greater than the 139.0% of Operating Income for the same Bonus Period in the prior year, but less than 179.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0% plus, for each 1% increase in Operating Income over 139.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 1.2500% (e.g., for an Operating Income increase in the Bonus Period in question of 150.0%, the Applicable Bonus Percentage shall be equal to 63.8%); and

(vi)If Operating Income for the Bonus Period in question is equal to or greater than 179.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0%;

(vii)If Operating Income for the Bonus Period in question is greater than the 179.0% of Operating Income for the same Bonus Period in the prior year, but less than 227.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0% plus, for each 1% increase in Operating Income over 179.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus

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Percentage shall be increased by 2.0833% (e.g., for an Operating Income increase in the Bonus Period in question of 200.0%, the Applicable Bonus Percentage shall be equal to 143.7%); and

(viii)If Operating Income for the Bonus Period in question is equal to or greater than 227.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 200.0%.

(f)            For the purposes of Section 4(b) above, for the 2008 Fall Bonus only, the “Applicable Bonus Percentage” shall be calculated as follows (provided, that in the event of any business acquisition or disposition in such Bonus Period, the Target shall be adjusted as the Board reasonably determines appropriate):

(i)If Operating Income for the Bonus Period in question is less than Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 0%;

(ii)If Operating Income for the Bonus Period in question is equal to Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0%;

(iii)If Operating Income for the Bonus Period in question is greater than Operating Income for the same Bonus Period in the prior year but less than 132.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0% plus, for each 1% increase in Operating Income over the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 0.9375% (e.g., for an Operating Income increase in the Bonus Period in question of 103.0% the Applicable Bonus Percentage shall be equal to 22.8%);

(iv)If Operating Income for the Bonus Period in question is equal to 132.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0%;

(v)If Operating Income for the Bonus Period in question is greater than the 132.0% of Operating Income for the same Bonus Period in the prior year, but less than 158.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0% plus, for each 1% increase in Operating Income over 132.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 1.9231% (e.g., for an Operating Income increase in the Bonus Period in question of 150.0%, the Applicable Bonus Percentage shall be equal to 84.6%); and

(vi)If Operating Income for the Bonus Period in question is equal to 158.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0%;

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(vii)If Operating Income for the Bonus Period in question is greater than the 158.0% of Operating Income for the same Bonus Period in the prior year, but less than 180.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0% plus, for each 1% increase in Operating Income over 158.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 4.5455% (e.g., for an Operating Income increase in the Bonus Period in question of 175.0%, the Applicable Bonus Percentage shall be equal to 177.3%); and

(viii)If Operating Income for the Bonus Period in question is equal to or greater than 180.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 200.0%.

(g)           For the purposes of Section 4(b) above, for the 2008 Full-Year Bonus only, the “Applicable Bonus Percentage” shall be calculated as follows (provided, that in the event of any business acquisition or disposition in such Bonus Period, the Target shall be adjusted as the Board reasonably determines appropriate):

(i)If Operating Income for the Bonus Period in question is less than Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 0%;

(ii)If Operating Income for the Bonus Period in question is equal to Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0%;

(iii)If Operating Income for the Bonus Period in question is greater than Operating Income for the same Bonus Period in the prior year but less than 135.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0% plus, for each 1% increase in Operating Income over the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 0.8571% (e.g., for an Operating Income increase in the Bonus Period in question of 103.0% the Applicable Bonus Percentage shall be equal to 22.6%);

(iv)If Operating Income for the Bonus Period in question is equal to 135.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0%;

(v)If Operating Income for the Bonus Period in question is greater than the 135.0% of Operating Income for the same Bonus Period in the prior year, but less than 166.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0% plus, for each 1% increase in Operating Income over 135.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus

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Percentage shall be increased by 1.6129% (e.g., for an Operating Income increase in the Bonus Period in question of 150.0%, the Applicable Bonus Percentage shall be equal to 74.2%); and

(vi)If Operating Income for the Bonus Period in question is equal to 166.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0%;

(vii)If Operating Income for the Bonus Period in question is greater than the 166.0% of Operating Income for the same Bonus Period in the prior year, but less than 198.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0% plus, for each 1% increase in Operating Income over 166.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 3.1250% (e.g., for an Operating Income increase in the Bonus Period in question of 175.0%, the Applicable Bonus Percentage shall be equal to 128.1%); and

(viii)If Operating Income for the Bonus Period in question is equal to or greater than 198.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 200.0%.

(d)Old Section 4(e) shall be renumbered Section 4(h).

(e)Section 9(b)(i)(B) shall be amended such that the text before the (x) shall be replaced with “Holdings shall pay Executive a Bonus with respect to the Bonus Periods in which occurs the Termination Date, such Bonus for each applicable Bonus Period”.

(f)Section 9(b)(i)(D) shall be amended by replacing the phrase “and shall pay Executive a bonus for each of the first four consecutive Bonus Periods commencing after Executive’s Termination Date equal to the Spring Target Bonus or Fall Target Bonus,” shall be replaced with the phrase “and shall pay Executive a bonus for each Bonus Period commencing on or prior to the second anniversary of Executive’s Termination Date equal to the Spring Target Bonus, Fall Target Bonus or Full-Year Target Bonus,”.

(g)Section 9(b)(ii)(B) shall be amended and restated in its entirety to read “Holdings shall pay Executive a Pro Rata Bonus with respect to the Bonus Periods in which occurs the Termination Date, such Pro Rata Bonus to be payable when bonuses for such Bonus Periods are paid to the Company’s employees generally;”

2.Agreement Otherwise Unchanged.  All other provisions of the Agreement shall remain in full force and effect.

3.Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of law principals thereof.

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4.Counterparts. This Amendment may be executed in separate counterparts (including via facsimile or electronic mail) each of which shall be deemed an original and all of which taken together shall constitute one and the same agreement.

5.Waiver of Jury Trial. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto.

*   *   *   *   *

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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date and year first written above.

NEW YORK & COMPANY, INC.

By: /s/ Ronald W. Ristau

Name: Ronald W. Ristau

President and Chief Financial Officer

LERNER NEW YORK, INC.

By: /s/ Ronald W. Ristau

Name: Ronald W. Ristau

President, Chief Financial Officer
and Secretary

/s/ Richard P. Crystal

RICHARD P. CRYSTAL

EX-10.4

Exhibit 10.4

AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Amendment (this “Amendment”), made as of December 22, 2006, by and among New York & Company, Inc. (the “Company”), Lerner New York, Inc. (“Lerner”) and Ronald Ristau (“Executive”).

R E C I T A L S

WHEREAS, Executive is party to that certain Second Amended and Restated Employment Agreement by and among the Company, Lerner and Executive dated August 25, 2004 (the “Agreement”).

WHEREAS, the Company, Lerner and Executive wish to amend the Agreement to clarify treatment of certain payments under the Agreement in order to make them compliant with Section 409A of the Internal Revenue Code of 1986, as amended.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following:

1.Amendment.

(a)A new Section 9(f) shall be added to the Agreement as follows:

“Severance Pay of Key Employee.  If on the date of Executive’s termination of employment by the Company: (i) a distribution of compensation to which Executive becomes entitled under this Agreement upon termination of employment (including but not limited to severance or other termination benefits) would be “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations issued thereunder, including Proposed Regulation Section 1.409A-1(b)(9)(iii) (or any successor provision), which describes certain separation pay arrangements that do not provide for the deferral of compensation, and (ii) Executive is a “key employee”, as defined in Code Section 416(i) without regard to paragraph (5) thereof, then such distribution shall not be made before the date which is six months after the date of termination of employment (or, if earlier, Executive’s death).  All distributions to which Executive otherwise would be entitled during such period shall be made on the date which is six months after the date of termination of employment (or, if earlier, death).  Any distributions thereafter owed to Executive under this Agreement will be made in accordance with the Company’s normal payroll policies and procedures.”

(b)A new Section 10 shall be added to the Agreement immediately following Section 9 as follows:

“Application of Code Section 409A.  It is the Company’s intent that compensation and benefits to which Executive is entitled under this Agreement not be treated as “nonqualified deferred compensation” under Code Section 409A (or any regulations or other guidance promulgated thereunder) and that any ambiguities in the construction of this Agreement be interpreted in order to effectuate such intent.  In the event that the Company determines, in its sole discretion, that any compensation or benefits to which Executive is entitled under this Agreement could be treated as “nonqualified deferred compensation” under Code Section 409A unless this Agreement is amended or modified, the Company may, in its sole discretion, amend or modify this Agreement without obtaining any additional consent from Executive, so long as such amendment or modification does not materially affect the net present value of the compensation or benefits to which Executive otherwise would be entitled under this Agreement.”

(c)All section references thereafter shall be updated to reflect the above additions.

2.Agreement Otherwise Unchanged.  All other provisions of the Agreement shall remain in full force and effect.

3.Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of law principals thereof.

4.Counterparts. This Amendment may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.

5.Waiver of Jury Trial. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto.

*   *   *   *   *

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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date and year first written above.

NEW YORK & COMPANY, INC.

By: /s/ Richard P. Crystal

Name: Richard P. Crystal

Chief Executive Officer

LERNER NEW YORK, INC.

By: /s/ Richard P. Crystal

Name: Richard P. Crystal

Chief Executive Officer

/s/ Ronald W. Ristau

RONALD W. RISTAU

EX-10.5

Exhibit 10.5

AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Amendment (this “Amendment”), made as of April 10, 2008, by and among New York & Company, Inc. (the “Company”), Lerner New York, Inc. (“Lerner”) and Ronald Ristau (“Executive”).

R E C I T A L S

WHEREAS, Executive is party to that certain Second Amended and Restated Employment Agreement by and among the Company, Lerner and Executive dated August 25, 2004, as amended as of December 22, 2006 (the “Agreement”).

WHEREAS, the Company, Lerner and Executive wish to amend the Agreement to acknowledge certain mutually agreed upon changes to Executive’s bonus compensation.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following:

1.Amendments.

(a)Section 4(b) shall be amended and restated in it’s entirety as follows:

“(b)         Bonuses, to the extent earned, shall be payable semi-annually by Holdings, once in relation to the Company’s results for Holdings’ first and second fiscal quarters (the “Spring Bonus”), and once both in relation to the Company’s results for Holdings’ third and fourth fiscal quarters (the “Fall Bonus”) and in relation to the Company’s results for Holdings’ full fiscal year (the “Full Year Bonus”).  As used herein, the period for the Spring Bonus, the period for the Fall Bonus and the period for the Full Year Bonus are each referred to as a “Bonus Period”.  Executive’s Bonus shall be based upon the attainment of certain Operating Income targets for such Bonus Period (each, a “Target”).  Executive’s Bonus for each Bonus Period shall equal (A) for the Spring Bonus, the product of 26.25% of Executive’s Base Salary (“Spring Target Bonus”), multiplied by the Applicable Bonus Percentage (as defined below), (B) for the Fall Bonus, the product of 33.75% of Executive’s Base Salary (“Fall Target Bonus”), multiplied by the Applicable Bonus Percentage (as defined below) and (C) for the Full-Year Bonus, the product of 15.0% of Executive’s Base Salary (“Full-Year Target Bonus”), multiplied by the Applicable Bonus Percentage (as defined below).”

(b)Section 4(c) shall be amended to add the words “, Section 4(e), Section 4(f) and Section 4(g)” after the words “Section 4(d)” in the first sentence.

(c)New Sections 4(e), 4(f) and 4(g) shall be inserted after Section 4(d) as follows:

(e)            For the purposes of Section 4(b) above, for the 2008 Spring Bonus only, the “Applicable Bonus Percentage” shall be calculated as follows (provided, that in the event of any business acquisition or disposition in such Bonus Period, the Target shall be adjusted as the Board reasonably determines appropriate):

(i)If Operating Income for the Bonus Period in question is less than Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 0%;

(ii)If Operating Income for the Bonus Period in question is equal to Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0%;

(iii)If Operating Income for the Bonus Period in question is greater than Operating Income for the same Bonus Period in the prior year but less than 139.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0% plus, for each 1% increase in Operating Income over the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 0.7692% (e.g., for an Operating Income increase in the Bonus Period in question of 103.0% the Applicable Bonus Percentage shall be equal to 22.3%);

(iv)If Operating Income for the Bonus Period in question is equal to 139.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0%;

(v)If Operating Income for the Bonus Period in question is greater than the 139.0% of Operating Income for the same Bonus Period in the prior year, but less than 179.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0% plus, for each 1% increase in Operating Income over 139.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 1.2500% (e.g., for an Operating Income increase in the Bonus Period in question of 150.0%, the Applicable Bonus Percentage shall be equal to 63.8%); and

(vi)If Operating Income for the Bonus Period in question is equal to or greater than 179.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0%;

(vii)If Operating Income for the Bonus Period in question is greater than the 179.0% of Operating Income for the same Bonus Period in the prior year, but less than 227.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0% plus, for each 1% increase in Operating Income over 179.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus

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Percentage shall be increased by 2.0833% (e.g., for an Operating Income increase in the Bonus Period in question of 200.0%, the Applicable Bonus Percentage shall be equal to 143.7%); and

(viii)If Operating Income for the Bonus Period in question is equal to or greater than 227.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 200.0%.

(f)            For the purposes of Section 4(b) above, for the 2008 Fall Bonus only, the “Applicable Bonus Percentage” shall be calculated as follows (provided, that in the event of any business acquisition or disposition in such Bonus Period, the Target shall be adjusted as the Board reasonably determines appropriate):

(i)If Operating Income for the Bonus Period in question is less than Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 0%;

(ii)If Operating Income for the Bonus Period in question is equal to Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0%;

(iii)If Operating Income for the Bonus Period in question is greater than Operating Income for the same Bonus Period in the prior year but less than 132.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0% plus, for each 1% increase in Operating Income over the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 0.9375% (e.g., for an Operating Income increase in the Bonus Period in question of 103.0% the Applicable Bonus Percentage shall be equal to 22.8%);

(iv)If Operating Income for the Bonus Period in question is equal to 132.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0%;

(v)If Operating Income for the Bonus Period in question is greater than the 132.0% of Operating Income for the same Bonus Period in the prior year, but less than 158.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0% plus, for each 1% increase in Operating Income over 132.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 1.9231% (e.g., for an Operating Income increase in the Bonus Period in question of 150.0%, the Applicable Bonus Percentage shall be equal to 84.6%); and

(vi)If Operating Income for the Bonus Period in question is equal to 158.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0%;

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(vii)If Operating Income for the Bonus Period in question is greater than the 158.0% of Operating Income for the same Bonus Period in the prior year, but less than 180.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0% plus, for each 1% increase in Operating Income over 158.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 4.5455% (e.g., for an Operating Income increase in the Bonus Period in question of 175.0%, the Applicable Bonus Percentage shall be equal to 177.3%); and

(viii)If Operating Income for the Bonus Period in question is equal to or greater than 180.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 200.0%.

(g)           For the purposes of Section 4(b) above, for the 2008 Full-Year Bonus only, the “Applicable Bonus Percentage” shall be calculated as follows (provided, that in the event of any business acquisition or disposition in such Bonus Period, the Target shall be adjusted as the Board reasonably determines appropriate):

(i)If Operating Income for the Bonus Period in question is less than Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 0%;

(ii)If Operating Income for the Bonus Period in question is equal to Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0%;

(iii)If Operating Income for the Bonus Period in question is greater than Operating Income for the same Bonus Period in the prior year but less than 135.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 20.0% plus, for each 1% increase in Operating Income over the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 0.8571% (e.g., for an Operating Income increase in the Bonus Period in question of 103.0% the Applicable Bonus Percentage shall be equal to 22.6%);

(iv)If Operating Income for the Bonus Period in question is equal to 135.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0%;

(v)If Operating Income for the Bonus Period in question is greater than the 135.0% of Operating Income for the same Bonus Period in the prior year, but less than 166.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 50.0% plus, for each 1% increase in Operating Income over 135.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus

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Percentage shall be increased by 1.6129% (e.g., for an Operating Income increase in the Bonus Period in question of 150.0%, the Applicable Bonus Percentage shall be equal to 74.2%); and

(vi)If Operating Income for the Bonus Period in question is equal to 166.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0%;

(vii)If Operating Income for the Bonus Period in question is greater than the 166.0% of Operating Income for the same Bonus Period in the prior year, but less than 198.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 100.0% plus, for each 1% increase in Operating Income over 166.0% of Operating Income for the same Bonus Period in the prior year, the Applicable Bonus Percentage shall be increased by 3.1250% (e.g., for an Operating Income increase in the Bonus Period in question of 175.0%, the Applicable Bonus Percentage shall be equal to 128.1%); and

(viii)If Operating Income for the Bonus Period in question is equal to or greater than 198.0% of Operating Income for the same Bonus Period in the prior year, then the Applicable Bonus Percentage shall equal 200.0%.

(d)Old Section 4(e) shall be renumbered Section 4(h).

(e)Section 9(b)(i)(B) shall be amended such that the text before the (x) shall be replaced with “Holdings shall pay Executive a Bonus with respect to the Bonus Periods in which occurs the Termination Date, such Bonus for each applicable Bonus Period”.

(f)Section 9(b)(i)(D) shall be amended by replacing the phrase “and shall pay Executive a bonus for each of the first four consecutive Bonus Periods commencing after Executive’s Termination Date equal to the Spring Target Bonus or Fall Target Bonus,” shall be replaced with the phrase “and shall pay Executive a bonus for each Bonus Period commencing on or prior to the second anniversary of Executive’s Termination Date equal to the Spring Target Bonus, Fall Target Bonus or Full-Year Target Bonus,”.

(g)Section 9(b)(ii)(B) shall be amended and restated in its entirety to read “Holdings shall pay Executive a Pro Rata Bonus with respect to the Bonus Periods in which occurs the Termination Date, such Pro Rata Bonus to be payable when bonuses for such Bonus Periods are paid to the Company’s employees generally;”

2.Agreement Otherwise Unchanged.  All other provisions of the Agreement shall remain in full force and effect.

3.Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of law principals thereof.

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4.Counterparts. This Amendment may be executed in separate counterparts (including via facsimile or electronic mail) each of which shall be deemed an original and all of which taken together shall constitute one and the same agreement.

5.Waiver of Jury Trial. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto.

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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date and year first written above.

NEW YORK & COMPANY, INC.

By: /s/ Richard P. Crystal

Name: Richard P. Crystal

Chief Executive Officer

LERNER NEW YORK, INC.

By: /s/ Richard P. Crystal

Name: Richard P. Crystal

Chief Executive Officer

/s/ Ronald W. Ristau

RONALD W. RISTAU