**EXHIBIT 10.33**

 

**AMENDMENT TO THE**

**CONFIDENTIALITY, NON-COMPETITION AND**

**TERMINATION BENEFITS AGREEMENT**

 

ThisAmendment to the Confidentiality, Non-Competition and Termination BenefitsAgreement (the “Amendment”) is made effective as of January 1, 2009, byand between               (“Executive”) and The Neiman Marcus Group, Inc., a Delaware corporation (“NMG”).

 

W I T N E S S E T H:

 

WHEREAS,the Executive and NMG entered into the Confidentiality, Non-Competition andTermination Benefits Agreement (the “Agreement”) effective as of 11/20/2002, and

 

WHEREAS,the Executive and NMG now desire to amend the Agreement for compliance withInternal Revenue Code Section 409A and the Treasury Regulationsthereunder;

 

NOW,THEREFORE, pursuant to the authority reserved in Paragraph 7, the Agreement isamended as follows:

 

1.             Paragraph 1(a) of the Agreement ishereby amended and restated in its entirety as follows:

 

(a)  While Executive is employed at-will by NMG, if (i) NMGterminates Executive’s employment for any reason other than for “Cause,” her “Total Disability,” or her death, or Executive terminates her employment for “Good Reason” in accordancewith Paragraph 1(e), and (ii) the Executive’s termination of employmentalso constitutes a separation from service under Treasury Regulation Section 1.409A-1(h),then, subject to Paragraphs 1(c) and 1(d) below, NMG shall provideExecutive with benefits (“Termination Benefits”) consisting of:

 

(1) an amount equivalent to 1.5 times her then-current annual base salary, lessrequired withholding, which amount would be paid over an 18-month period (hereinafter, the “Salary Continuance Period”)in regular, bi-weekly installments beginning with the first payroll periodimmediately following such termination; and

 

(2) if, at the time of her termination,Executive participates in a group medical insurance plan offered by NMG andExecutive is eligible for and elects to receive continued coverage under suchplan in accordance with the Consolidated Omnibus Budget Reconciliation Act of1985 (“COBRA”) or any successor law, NMG will reimburse Executive during theSalary Continuance Period or, if shorter, the period of such actual COBRAcontinuation coverage, for the total amount of the monthly COBRA medicalinsurance premiums actually paid by Executive for such continued medicalinsurance benefits.

 

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2.             Paragraph 1(b) of the Agreement ishereby amended and restated in its entirety as follows:

 

(b) NMG shall require any successor or assignee (whether direct or indirect, bypurchase, merger, consolidation, or otherwise) to all or substantially all thebusiness and/or assets of NMG, by agreement in writing in form and substancereasonably satisfactory to Executive, expressly, absolutely, andunconditionally to assume and agree to perform this Agreement in the samemanner and to the same extent that NMG would be required to perform it if nosuch succession or assignment had taken place. If NMG fails to obtain such agreement by the effective time of any such successionor assignment and if such failure constitutes Good Reason then the TerminationBenefits to which Executive is entitled upon a termination for Good Reasonpursuant to Paragraph 1(a) shall be the sole remedy of Executive for anyfailure by NMG to obtain such agreement. As used in this Agreement, “NMG” shall include any successor or assignee(whether direct or indirect, by purchase, merger, consolidation, or otherwise)to all or substantially all the business and/or assets of NMG that executes anddelivers the agreement provided for in this Paragraph 1(b) or thatotherwise becomes obligated under this Agreement by operation of law.

 

3.             Paragraph 1(d) of the Agreement ishereby amended and restated in its entirety as follows:

 

(d) If Executive is arrested or indicted for any felony, other serious criminaloffense, or any violation of federal or state securities laws, or has any civilenforcement action brought against her byany regulatory agency, for actions or omissions related to her employment with NMG, or if NMG reasonablydetermines in its sole judgment that Executive has committed any act oromission that would have entitled NMG to terminate her employment for Cause, whether such act or omission wascommitted during her employment with NMGor during the Salary Continuance Period, then (1) NMG’s obligation toprovide Termination Benefits shall immediately end, and (2) Executiveshall repay to NMG any amounts paid to heras Termination Benefits within 30 days after a written request to do so by NMG.

 

4.             The Agreement is hereby amended by theaddition of the following as Paragraph 1(e):

 

(e) The Executive may terminate heremployment for Good Reason.  To exercise her right to terminate for Good Reason, theExecutive must provide written notice to NMG of herbelief that Good Reason exists within 90 days of the initial existence of thecircumstance(s) believed to constitute Good Reason, and such notice shalldescribe the circumstance(s) believed to constitute Good Reason.  If such circumstance(s) may reasonablybe remedied, NMG shall have 30 days to effect that remedy.  If not remedied within that 30-day period,the Executive may terminate heremployment for Good Reason by delivery of written notice to NMG; provided,however, that a termination for Good Reason must occur no later than 180 daysafter the initial existence of the circumstance(s) believed to constituteGood Reason; otherwise, the Executive is deemed to have accepted thecircumstance(s) that may have given rise to the existence of Good Reason.

 

5.             The Agreement is hereby amended by theaddition of the following as Paragraph 10:

 

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10.           In the event Executive is determined to be aspecified employee (as defined by Treasury Regulation Section 1.409A-1(i))by NMG upon Executive’s separation from service (as defined by TreasuryRegulation Section 1.409A-1(h)), any payment hereunder subject to Code Section 409Awhich is payable upon such separation from service may not be made before thedate that is six months after the date of the separation from service (or, ifearlier than the end of the six-month period, the date of death ofExecutive).  Any such payments which aredue during the six-month period shall be accumulated and paid on the first day ofthe seventh month following the date of Executive’s separation from service.

 

6.             Appendix A to the Agreement is hereby amendedby the addition of the following as Paragraph 6:

 

6.             “Good Reason” shall mean any of the followingactions if taken without Executive’s prior consent:  (i) a material diminution in Executive’sbase compensation; (ii) a material diminution in Executive’s authority,duties, or responsibilities; (iii) a material diminution in the authority,duties, or responsibilities of the officer of NMG to whom Executive is requiredto report; (iv) a material diminution in the budget over which Executiveretains authority; (v) a material change in the geographic location atwhich Executive must perform services; and (vi) any other action orinaction that constitutes a material breach by NMG of this Agreement.

 

7.             Except as otherwise specifically set forthherein, all other terms and conditions of the Agreement shall remain in fullforce and effect.

 

IN WITNESS WHEREOF, theparties hereto have caused this Amendment to be executed on this the 10th day of December, 2008.

 
| ** ** | ** ** | **THE  NEIMAN MARCUS GROUP, INC.** |
|------------|------------|------------------------------------|
|       |       |                               |
|       |       |                               |
|       | By:        |                               |
|       | Name:      | Nelson  A. Bangs                   |
|       | Title:     | Senior  Vice President             |
|       |       |                               |
|       |       |                               |
| ** ** | ** ** | **EXECUTIVE**                      |
| ** ** | ** ** | ** **                         |
|       |       |                               |

 

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