Exhibit 10.58


 


Form of


 


SECOND AMENDED AND RESTATED


STOCK OPTION GRANT AGREEMENT

(Non-Qualified Stock Option)


 


This Second Amended and
Restated Stock Option Grant Agreement (the “Agreement”) is made effective as of
this            day of                               ,
2009 between Neiman Marcus, Inc. (the “Company”) and                                                   
(the “Participant”).


 


WHEREAS, the Company has
adopted and maintains the Neiman Marcus, Inc. Management Equity Incentive
Plan, as amended (the “Plan”);


 


WHEREAS, the Plan provides
for the grant to Participants in the Plan of Non-Qualified Stock Options to
purchase shares of Common Stock of the Company;


 


WHEREAS, the Company
previously granted a Non-Qualified Stock Option to the Participant pursuant to
the Plan evidenced by a Stock Option Grant Agreement dated as of                               ,
20      , that contained both a Performance
Option and a Fair Value Option (the “Original Option”);


 


WHEREAS, the Stock Option
Grant Agreement with respect to the Original Option was amended effective January 1,
2009;


 


WHEREAS, the Stock Option
Grant Agreement with respect to the Original Option was amended and restated
effective as of                               ,
2009 (the “Amended and Restated Stock Option Grant Agreement”) to reflect the
exchange of the Performance Option and to modify the Expiration Date of both
the Performance Option and the Fair Value Option;


 


WHEREAS, the Fair Market
Value of the shares of Common Stock subject to the Fair Value Option is less than
the Exercise Price of the Fair Value Option immediately prior to the
effectiveness of this Agreement;


 


WHEREAS, the Company and the
Participant have agreed to cancel the Fair Value Option as consideration for
the grant of a new Fair Value Option as provided herein; and


 


WHEREAS, the Performance
Option shall remain unchanged;


 


NOW, THEREFORE, pursuant to
the authority reserved in Section 4.12 of the Plan and in consideration of
the premises and the mutual covenants hereinafter set forth, the parties hereto
hereby agree to amend and restate the Amended and Restated Stock Option Grant
Agreement in its entirety as follows:


 


1.             Incorporation of Plan.  All terms, conditions and restrictions of the
Plan are 


 

















 


incorporated herein and made
part hereof as if stated herein. All capitalized terms used and not defined
herein shall have the meaning given to such terms in the Plan.


 


2.             Grant of Options. 
Pursuant to, and subject to, the terms and conditions set forth herein
and in the Plan, the Company hereby restates the prior grant to the Participant
of a Performance Option with respect to                     
shares of Common Stock of the Company and now hereby grants to the Participant
a new Fair Value Option with respect to                     
shares of Common Stock of the Company, such that the total number of shares of
Common Stock of the Company granted to the Participant hereunder as a
Non-Qualified Stock Option is                     
shares (the “Option”).


 


3.             Grant Date. 
The Grant Date of the Fair Value Option hereby granted is                               ,
2009. The Grant Date of the Performance Option shall remain                               ,
2009.


 


4.             Exercise Price.


 


(a)           The Exercise Price of each share of Common Stock underlying
the portion of the Option that is a Fair Value Option is $                    .


 


(b)           The Exercise Price of each share of Common Stock
underlying the portion of the Option that is a Performance Option shall be an increasing
amount starting with $                    
on the Grant Date and increasing at a 10.00% compound rate on each anniversary
of the Grant Date of such Performance Option until the earlier to occur of (i) the
exercise of the Option, (ii) the fourth anniversary of the Grant Date of
such Performance Option, or (iii) the occurrence of a Change of Control of
the Company; provided, however, that the Exercise Price shall cease to increase
as provided herein on a portion of the outstanding Performance Option following
the sale by the Majority Stockholder of shares of Common Stock as
follows:  the pro rata
portion of the Performance Option held by a Participant with respect to which
the Exercise Price shall cease to increase shall be the portion of the
Performance Option that bears the same ratio to the total Performance Option
held by a Participant as the total number of shares of Common Stock sold by the
Majority Stockholder bears to the total number of shares of Common Stock owned
by the Majority Stockholder immediately prior to such sale.


 


5.             Vesting Date.


 


(a)           The Fair Value Option shall become exercisable as follows:
 25% of the shares underlying such Fair
Value Option shall vest and become exercisable on                               ,
2010 and the remaining portion of the Fair Value Option shall vest and become
exercisable in thirty-six (36) equal monthly installments over the following thirty-six
(36) months, beginning on the one-month anniversary of such date, until 100% of
the Fair Value Option is fully vested and exercisable thereafter, provided that
the Participant is still employed by the Company at such time.


 


(b)           The Performance Option shall become exercisable as
follows:  25% of the shares underlying
such Performance Option shall vest and become exercisable on the first
anniversary


 


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of the Grant Date of such
Performance Option and the remaining portion of the Performance Option shall
vest and become exercisable in thirty-six (36) equal monthly installments over
the thirty-six (36) months following the first anniversary of the Grant Date of
such Performance Option, beginning on the one-month anniversary of such first
anniversary, until 100% of the Performance Option is fully vested and
exercisable thereafter, provided that the Participant is still employed by the
Company on each such anniversary.


 


6.             Expiration Date.  With respect to the Option or any portion
thereof which has not become exercisable, the Option shall expire on the date
the Participant’s Employment is terminated for any reason, and with respect to the
Option or any portion thereof which has become exercisable, the Option shall
expire (i) 90 days after the Participant’s termination of Employment for
reasons other than Retirement, Cause, death or Disability; (ii) one year
after termination of the Participant’s Employment by reason of Retirement,
death or Disability; (iii) as of the commencement of business on the date
the Participant’s Employment is, or is deemed to have been, terminated for
Cause; or (iv) on                               ,
2017, if the Option has not previously expired for any of the reasons specified
above in this Section 6.


 


7.             Certain Rights on a Change of Control.  If
(a) a Change of Control occurs, (b) the surviving corporation
following such Change of Control is an entity for whose stock there is no
Public Market, (c) the surviving corporation assumes the Participant’s
outstanding Options in connection with such Change of Control and such Options
convert into options to purchase common stock or other equity interests of the
surviving corporation (the “Assumed Options”) and (d) the Participant
thereafter experiences a Qualifying Termination at any time prior to the
occurrence of an Initial Public Offering of the surviving corporation, the
Participant will be entitled to sell to the Company or such surviving
corporation, within ninety (90) days of such Qualifying Termination, all or any
portion of the Assumed Options that the Participant had not exercised at the
time of such sale and elects to sell to the Company or such surviving
corporation (the “Eligible Assumed Options”), and the Company or such surviving
corporation will be obligated to purchase from the Participant, in full
satisfaction of the Participant’s rights with respect to such Eligible Assumed
Options, all such Eligible Assumed Options, for a price equal to the aggregate fair
market value, as determined in accordance with Treas. Reg. §
1.409A-1(b)(5)(iv), of the shares of common stock or other equity interests
underlying such Eligible Assumed Options, minus the aggregate exercise price of
such Eligible Assumed Options that such Participant would have been required to
pay in order to exercise such Eligible Assumed Options.


 


8.             Construction of Agreement.  Any provision of this Agreement (or portion thereof)
which is deemed invalid, illegal or unenforceable in any jurisdiction shall, as
to that jurisdiction and subject to this section, be ineffective to the extent
of such invalidity, illegality or unenforceability, without affecting in any
way the remaining provisions thereof in such jurisdiction or rendering that or
any other provisions of this Agreement invalid, illegal, or unenforceable in
any other jurisdiction. If any covenant should be deemed invalid, illegal or
unenforceable because its scope is considered excessive, such covenant shall be
modified so that the scope of the covenant is reduced only to the minimum
extent necessary to render the modified covenant valid, legal and enforceable.
No waiver of any provision or violation of this Agreement by the Company shall
be implied by the Company’s forbearance or failure to take action. It is
intended that the Option be exempt from Code Section 409A, and this
Agreement 


 


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shall be administered and
construed to the fullest extent possible to reflect and implement such intent.


 


9.             Delays or Omissions.  No delay or omission to exercise any right,
power or remedy accruing to any party hereto upon any breach or default of any
party under this Agreement, shall impair any such right, power or remedy of
such party nor shall it be construed to be a waiver of, or acquiescence in, any
such breach or default, or any similar breach or default thereafter occurring
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of any party
of any breach or default under this Agreement, or any waiver on the part of any
party or any provisions or conditions of this Agreement, shall be in writing
and shall be effective only to the extent specifically set forth in such
writing.


 


10.           Limitation on Transfer.  The Option shall be exercisable only by the
Participant or the Participant’s Permitted Transferee(s), as determined in
accordance with the terms of the Plan (including without limitation the
requirement that the Participant obtain the prior written approval by the Board
of any proposed Transfer to a Permitted Transferee during the lifetime of the
Participant). Each Permitted Transferee shall be subject to all the
restrictions, obligations, and responsibilities as apply to the Participant
under the Plan and this Agreement and shall be entitled to all the rights of
the Participant under the Plan, provided that in respect of any Permitted
Transferee which is a trust or custodianship, the Option shall become
exercisable and/or expire based on the employment and termination of employment
of the Participant. All shares of Common Stock obtained pursuant to the Option
granted herein shall not be transferred except as provided in the Plan and,
where applicable, the Management Stockholders’ Agreement.


 


11.           Integration.  This Agreement, and the other documents
referred to herein or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and in the Plan. This Agreement,
including without limitation the Plan, supersedes all prior agreements and
understandings between the parties with respect to its subject matter.


 


12.           Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.


 


13.           Governing Law.  This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without regard to the provisions governing conflict of laws.


 


14.           Participant Acknowledgment.  The Participant hereby acknowledges receipt of
a copy of the Plan. The Participant hereby acknowledges that all decisions,
determinations and interpretations of the Board in respect of the Plan, this
Agreement and the Option shall be final and conclusive. The Participant further
acknowledges that, prior to the existence of a Public 


 


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Market, no exercise of the
Option or any portion thereof shall be effective unless and until the
Participant has executed the Management Stockholders’ Agreement and the
Participant hereby agrees to be bound thereby.


 


IN WITNESS WHEREOF, the
Company has caused this Agreement to be duly executed by its duly authorized
officer and said Participant has hereunto signed this Agreement on his own
behalf, thereby representing that he has carefully read and understands this
Agreement, the Plan and the Management Stockholders’ Agreement as of the day
and year first written above.


 


	
   

  	
  NEIMAN
  MARCUS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Participant’s
  Name]

  



 


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