Exhibit 10.28


 


THE NEIMAN MARCUS GROUP, INC.


 


PURCHASED RESTRICTED STOCK UNIT
AGREEMENT


ISSUED PURSUANT TO 1997 INCENTIVE
PLAN


 


THIS AGREEMENT is made as
of the         day of
                         ,
20     , by and between THE NEIMAN MARCUS GROUP, INC.,
a Delaware corporation (the “Corporation”), and
                                      ,
an employee of the Corporation or one of its subsidiaries (the “Employee”).


 


Recitals:


 


1.             On
January 17, 1997, the Corporation adopted for the benefit of key employees The
Neiman Marcus Group, Inc. 1997 Incentive Plan (the “Plan”), and the Plan was
approved by its stockholders on that date.


 


2.             The
Plan is administered by the Compensation Committee (the “Committee”) of the
Corporation’s Board of Directors (the “Board”).


 


3.             At
its September 19, 2003 meeting, the Committee authorized the grant to the
Employee under the Plan of a right to purchase shares of Class A Common Stock
of the Corporation, par
value $.01 per share (“Common Stock”), at 50% of the fair market value
of the shares on the date of grant, with the transferability thereof to be
subject to restriction for a period of time (the “2003 Purchased Restricted
Stock”).


 


4.             Prior
to the issuance of the 2003 Purchased Restricted Stock, the Committee rescinded
the grant of the right to purchase it and instead authorized the grant to the
Employee of a right to purchase a number of Purchased Restricted Stock Units
representing a fictional interest in a number of shares of Common Stock equal
to the number of shares of Common Stock subject to the rescinded right to
purchase the 2003 Purchased Restricted Stock and with the same purchase price,
which Units shall be subject to the vesting, distribution and other provisions
specified herein.


 


 


Agreement:


 


For and in
consideration of the mutual covenants hereinafter set forth and for other good
and valuable consideration, it is agreed as follows:


 


1.             Purchase of Purchased
Restricted Stock Units.  In
consideration of
$                 
in cash paid to the Corporation by the Employee, the Corporation hereby grants
to the Employee
                         
Purchased Restricted Stock Units (the “Award”), subject to the vesting schedule


 


 

















 


described in Section 4 and the requirement
that the Purchased Restricted Stock Units may be forfeited to the Corporation
under the circumstances set forth in that Section.


 


2.             No Rights as Equity
Owner.  This Award of
Purchased Restricted Stock Units shall not entitle the Employee to any voting
rights, rights upon liquidation or other rights of owners of the Corporation
unless and until shares of Common Stock are issued to the Employee as provided
herein.


 


3.             Dividend Equivalent
Rights.  In the event a cash
dividend is paid on the Common Stock while the Employee holds undistributed
Purchased Restricted Stock Units that have not been forfeited, whether or not
then vested, the Corporation shall pay to the Employee a cash payment equal to
the dividend that would have been received by the Employee had the number of
shares of Common Stock represented by the Purchased Restricted Stock Units been
issued and outstanding in the name of the Employee on the record date
established for such dividend.


 


4.             Vesting of Purchased
Restricted Stock Units and Distribution of Common Stock; Termination of
Employment; Death; Disability; or Retirement.


 


(a)           The Purchased Restricted Stock Units
granted hereunder shall vest on October 24, 2006 if and only if the Employee is
on such date an employee of the Corporation or one of its subsidiaries (the
“Vesting Date”).  On the Vesting Date,
the Corporation shall issue to the Employee a certificate representing a number
of shares of Common Stock equal to the number of Purchased Restricted Stock
Units then subject to this Award; provided, however, that the Employee shall
have the right to elect to defer the distribution of all or a portion of the
shares of Common Stock issuable to the Employee on the Vesting Date until a
date (the “Deferred Distribution Date”) selected by the Employee that is at
least one year later than the Vesting Date but on or before the fifth
anniversary of the Vesting Date, in which event the Corporation shall issue a
certificate representing the number of shares of Common Stock subject to such
election on the Deferred Distribution Date or, if earlier, as soon as
practicable following the date of the Employee’s death, a determination of the
Employee’s permanent disability according to paragraph (d) below, or the
Employee’s termination of employment with the Corporation and all of its
subsidiaries for any reason.  Any such
election shall be made by the Employee on a form and in a manner acceptable to
the Corporation at least twelve months prior to the Vesting Date and shall be
irrevocable as of the date that is twelve months prior to the Vesting Date.


 


(b)           Subject to the provisions of
paragraphs (c), (d) and (e) of this Section, upon termination of the Employee’s
employment with the Corporation and all of its subsidiaries at a time when the
Purchased Restricted Stock Units have not vested, (i) the Employee shall
have no rights whatsoever in and to any of the Purchased Restricted Stock
Units; (ii) all the Purchased Restricted Stock Units shall be forfeited to
the Corporation and shall no longer be outstanding as of the date of such
termination of employment; (iii) neither the Employee nor any of his or
her heirs, beneficiaries, executors, administrators or other personal
representatives shall have any rights with respect thereto; and (iv) the
Corporation shall refund to the Employee an amount equal to the lesser of (A)
the amount the Employee paid


 


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for the Purchased Restricted
Stock Units pursuant to Section 1 and (B) an amount equal to the number of
Purchased Restricted Stock Units multiplied by the average of the closing
prices of a share of Common Stock on the New York Stock Exchange over the ten
most recent trading days preceding the date of termination of employment.


 


(c)           If the Employee dies while in the
employ of the Corporation or any of its subsidiaries, the Purchased Restricted
Stock Units then subject to this Award shall vest if not yet vested. The person
or persons to whom the Employee’s rights under this Agreement are transferred
by will or the laws of descent and distribution shall be entitled to receive,
within 30 days after presentation to the Secretary of the Corporation of
documentation acceptable to the Secretary establishing the legal rights of such
person or persons, a certificate representing a number of shares of Common
Stock equal to the number of Purchased Restricted Stock Units then subject to
this Award.


 


(d)           If while in the employ of the
Corporation or any of its subsidiaries the Employee shall become permanently
disabled such that the Employee will be unable to return to his or her
employment with the Corporation or its subsidiaries (as shall be conclusively
determined by the Employee Benefits Committee of the Corporation), the
Purchased Restricted Stock Units then subject to this Award shall vest if not
yet vested. Within 30 days after the determination of such permanent
disability, the Corporation shall issue to the Employee a certificate
representing a number of shares of Common Stock equal to the number of
Purchased Restricted Stock Units then subject to this Award.


 


(e)           If the Employee terminates employment
with the Corporation and all of its subsidiaries prior to the Vesting Date on
account of his or her Eligible Retirement, then a portion of the Purchased
Restricted Stock Units then subject to this Award shall vest, with the number
to be determined by multiplying the number of Purchased Restricted Stock Units
then subject to this Award by a fraction, the numerator of which is the number
of completed months from the date of this Agreement through the date of
Eligible Retirement and the denominator of which is 36.  Within 30 days after the date of such
Eligible Retirement, the Corporation shall issue to the Employee a certificate
representing a number of shares of Common Stock equal to such number of vested
Purchased Restricted Stock Units.  The
remaining Purchased Restricted Stock Units subject to this Agreement shall be
treated in the same manner as unvested Purchased Restricted Stock Units subject
to the provisions of Section 4(b).  For
purposes of this Agreement, “Eligible Retirement” shall mean the termination of
the Employee’s employment with the Corporation and all of its subsidiaries on
or after the date as of which the Employee (i) is eligible for a normal
retirement benefit on account of reaching normal retirement age under the terms
of The Neiman Marcus Group, Inc. Retirement Plan (or a successor plan), or (ii)
is not less than age 55 and has not less than twenty (20) years of vesting or
credited service under the terms of The Neiman Marcus Group, Inc. Retirement
Plan (or a successor plan); provided that the Employee’s termination of
employment shall not be an “Eligible Retirement” if the Committee shall find
that the Employee was terminated on account of “Cause.”


 


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For purposes of this
Agreement, “Cause” shall mean, in the Committee’s reasonable judgment, (i) a
breach of duty by the Employee in the course of his or her employment involving
fraud, acts of dishonesty (other than inadvertent acts or omissions),
disloyalty, or moral turpitude, (ii) conduct that is materially detrimental to
the Corporation or any of its subsidiaries, monetarily or otherwise, or
reflects unfavorably on the Corporation or any of its subsidiaries or the
Employee, (iii) the Employee’s failure to comply with or enforce the
Corporation’s or any of its subsidiaries’ policies concerning equal employment
opportunity, including engaging in sexually or otherwise harassing conduct,
(iv) the Employee’s repeated insubordination or failure to comply with or
enforce other personnel policies of the Corporation or any of its subsidiaries,
(v) the Employee’s failure to devote his or her full working time and best
efforts to the performance of his or her responsibilities to the Corporation or
its subsidiaries, or (vi) the Employee’s conviction of or entry of a plea
agreement or consent decree or similar arrangement with respect to, a felony,
other serious criminal offense, or any violation of federal or state securities
laws; provided, however, that with respect to items (iv) and (v), the Employee
has been provided prior written notice of the failure and afforded a reasonable
opportunity to correct.


 


5.             No Guarantee of Employment. 
Nothing in the Plan or in this Agreement shall (i) confer on the
Employee any right to continue in the employ of the Corporation or any of its
subsidiaries; (ii) affect the right of the Employee or the Corporation or
any of its subsidiaries to terminate the employment relationship at any time;
(iii) be deemed a waiver or modification of any provision contained in any
agreement between the Employee and the Corporation or any of its subsidiaries;
(iv) be construed as part of the Employee’s entitlement to remuneration or
benefit pursuant to a contract of employment or otherwise or as compensation
for past services rendered; (v) afford the Employee any rights or additional
rights to compensation or damages as a consequence of the loss or termination
of his or her office; or (vi) entitle the Employee to any compensation or
damages for any loss or potential loss which he or she may suffer by reason of
being or becoming unable to vest in the Purchased Restricted Stock Units as a consequence of the loss or termination of
his or her office, employment, or service with the Corporation or any of its
subsidiaries.  A cessation of the
Employee’s employment by reason of a leave of absence of not more than six
months approved by the Corporation shall not be deemed a termination of
employment.


 


6.             Changes in Common
Stock.  In the event of any
reorganization, recapitalization, stock split, stock dividend, merger,
consolidation, combination of shares or other change affecting the Common
Stock, the Committee shall make such adjustments as it may deem appropriate
with respect to the Purchased Restricted Stock Units.  Any such adjustment made by the Committee shall be conclusive.


 


7.             Tax Withholding.  The Corporation shall take any
steps it deems necessary or desirable to satisfy any obligations imposed by a
Federal, state, local or other governmental entity to withhold taxes; provided,
however, that in furtherance of satisfying such withholding obligations, the
Employee shall have the right (by delivering written notice to the Secretary of
the Corporation no less than 30 days nor more than 60 days prior to the date of
distribution) to have a number of whole shares of Common Stock withheld by the
Corporation from the shares to be


 


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issued upon distribution, or to tender to the
Corporation, other whole shares of Common Stock, with a value not to exceed the
statutory minimum tax withholding obligation. 
In addition, the Employee and/or his or her beneficiary (including his
or her estate) shall bear all taxes on amounts paid under the Plan to the
extent no taxes are withheld, irrespective of whether withholding is required.


 


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8.             Interpretation of Plan and this Agreement.  This Agreement is being entered into
pursuant to the Plan and shall be governed in all respects by the terms and
provisions of the Plan, which are incorporated herein by this reference.  In the case of any inconsistency between the
Plan and this Agreement, the Plan provisions shall control.  Capitalized terms used and not defined in
this Agreement shall have the respective meanings given them in the Plan.  As used herein the term “employee” shall
mean an employee of the Corporation or of any subsidiary of the Corporation,
and members of the Board, and the term “subsidiary of the Corporation” shall
mean a subsidiary corporation as defined in Section 424 of the Internal Revenue
Code of 1986, as amended.  In all
respects, questions of interpretation and application of the Plan and of this
Agreement shall be determined by a majority of the Committee, as it may from
time to time be constituted, and the determinations of such majority shall be
final and binding upon all persons.


 


9.             Choice of Law; Exclusive Forum; Consent to
Jurisdiction; Waiver of Right to Contest Removal and to Jury Trial.  The validity, performance and enforceability
of this Agreement shall be determined and governed by the laws of the State of
Texas, without regard to its conflict of laws principles. The exclusive forum
for any action concerning this Agreement or the transactions contemplated
hereby shall be in a court of competent jurisdiction in Dallas County, Texas,
with respect to a state court, or the Dallas Division of the United States
District Court for the Northern District of Texas, with respect to a federal
court.  THE EMPLOYEE HEREBY CONSENTS TO
THE EXERCISE OF JURISDICTION OF A COURT IN THE EXCLUSIVE FORUM AND WAIVES ANY
RIGHT HE OR SHE MAY HAVE TO CHALLENGE OR CONTEST THE REMOVAL AT ANY TIME BY THE
CORPORATION TO FEDERAL COURT OF ANY SUCH ACTION HE OR SHE MAY BRING AGAINST IT
IN STATE COURT.  THE EMPLOYEE AND THE
CORPORATION FURTHER HEREBY MUTUALLY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY
ACTION CONCERNING THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY.


 


EXECUTED at Dallas, Texas, as of the date appearing in
the first paragraph of this Agreement.


 


 


	
   

  	
  THE NEIMAN MARCUS GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
    Nelson A. Bangs,

  
	
   

  	
   

  	
    Senior Vice President & General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  , Employee

  
						



 


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