**Exhibit 10.57**

 

**Form of**

 

**AMENDED AND RESTATED**

**STOCK OPTION GRANT AGREEMENT**(Non-Qualified Stock Option)

 

This Amended and RestatedStock 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 hasadopted and maintains the Neiman Marcus, Inc. Management Equity IncentivePlan, as amended (the “Plan”);

 

WHEREAS, the Plan providesfor the grant to Participants in the Plan of Non-Qualified Stock Options topurchase shares of Common Stock of the Company;

 

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

 

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

 

WHEREAS, the Fair MarketValue of the shares of Common Stock subject to the Original Option is less thanthe Exercise Price of the Original Option immediately prior to theeffectiveness of this Agreement;

 

WHEREAS, pursuant to anexchange offer accepted by the Participant, the Company and the Participanthave cancelled the portion of the Original Option that is a Performance Optionas consideration for the grant of a new Performance Option as provided herein;

 

WHEREAS, the Company hasapproved the modification of the Expiration Date of the Original Option withrespect to both the Performance Option and the Fair Value Option; and

 

WHEREAS, the portion of theOriginal Option that is a Fair Value Option shall otherwise remain unchanged;

 

NOW, THEREFORE, pursuant tothe authority reserved in Section 4.12 of the Plan and in consideration ofthe premises and the mutual covenants hereinafter set forth, the parties heretohereby agree to amend and restate the Stock Option Grant Agreement with respectto the Original Option in its entirety as follows:

 

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

 

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incorporated herein and madepart hereof as if stated herein. All capitalized terms used and not definedherein 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 hereinand in the Plan, the Company hereby restates the prior grant to the Participantof a Fair Value Option with respect to                     shares of Common Stock of the Company and now hereby grants to the Participanta new Performance Option with respect to                     shares of Common Stock of the Company, such that the total number of shares ofCommon Stock of the Company granted to the Participant hereunder as aNon-Qualified Stock Option is                     shares (the “Option”).

 

3.             Grant Date. The Grant Date of the Performance Option hereby granted is                               ,2009. The Grant Date of the Fair Value Option shall remain                               ,20      .

 

4.             Exercise Price.

 

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

 

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

 

5.             Vesting Date.

 

(a)           The Fair Value Option shall become exercisable as follows: 20% of the shares underlying such FairValue Option shall vest and become exercisable on the first anniversary of theGrant Date of such Fair Value Option and the remaining portion of the FairValue Option shall vest and become exercisable in forty-eight (48) equalmonthly installments over the forty-eight (48) months following the firstanniversary of the Grant Date of such Fair Value Option, beginning on theone-month anniversary of such first anniversary, until 100% of the Fair ValueOption is fully vested and exercisable thereafter, provided that theParticipant is still employed by the Company on each such anniversary.

 

(b)           The Performance Option shall become exercisable asfollows:  25% of the shares underlyingsuch Performance Option shall vest and become exercisable on the firstanniversary

 

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

 

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

 

7.             Certain Rights on a Change of Control.  If(a) a Change of Control occurs, (b) the surviving corporationfollowing such Change of Control is an entity for whose stock there is noPublic Market, (c) the surviving corporation assumes the Participant’soutstanding Options in connection with such Change of Control and such Optionsconvert into options to purchase common stock or other equity interests of thesurviving corporation (the “Assumed Options”) and (d) the Participantthereafter experiences a Qualifying Termination at any time prior to theoccurrence of an Initial Public Offering of the surviving corporation, theParticipant will be entitled to sell to the Company or such survivingcorporation, within ninety (90) days of such Qualifying Termination, all or anyportion of the Assumed Options that the Participant had not exercised at thetime of such sale and elects to sell to the Company or such survivingcorporation (the “Eligible Assumed Options”), and the Company or such survivingcorporation will be obligated to purchase from the Participant, in full satisfactionof the Participant’s rights with respect to such Eligible Assumed Options, allsuch 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 theshares of common stock or other equity interests underlying such EligibleAssumed Options, minus the aggregate exercise price of such Eligible AssumedOptions that such Participant would have been required to pay in order toexercise such Eligible Assumed Options.

 

8.             Construction of Agreement.  Any provision of this Agreement (or portionthereof) which is deemed invalid, illegal or unenforceable in any jurisdictionshall, as to that jurisdiction and subject to this section, be ineffective tothe extent of such invalidity, illegality or unenforceability, withoutaffecting in any way the remaining provisions thereof in such jurisdiction orrendering that or any other provisions of this Agreement invalid, illegal, orunenforceable in any other jurisdiction. If any covenant should be deemedinvalid, illegal or unenforceable because its scope is considered excessive,such covenant shall be modified so that the scope of the covenant is reducedonly to the minimum extent necessary to render the modified covenant valid, legaland enforceable. No waiver of any provision or violation of this Agreement bythe Company shall be implied by the Company’s forbearance or failure to takeaction. It is intended that the Option be exempt from Code Section 409A,and this Agreement 

 

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

 

9.             Delays orOmissions.  No delay or omission toexercise any right, power or remedy accruing to any party hereto upon anybreach or default of any party under this Agreement, shall impair any suchright, power or remedy of such party nor shall it be construed to be a waiverof, or acquiescence in, any such breach or default, or any similar breach ordefault thereafter occurring nor shall any waiver of any single breach ordefault be deemed a waiver of any other breach or default theretofore orthereafter occurring. Any waiver, permit, consent or approval of any kind orcharacter on the part of any party of any breach or default under thisAgreement, or any waiver on the part of any party or any provisions orconditions of this Agreement, shall be in writing and shall be effective onlyto the extent specifically set forth in such writing.

 

10.           Limitation on Transfer.  The Option shall be exercisable only by theParticipant or the Participant’s Permitted Transferee(s), as determined inaccordance with the terms of the Plan (including without limitation therequirement that the Participant obtain the prior written approval by the Boardof any proposed Transfer to a Permitted Transferee during the lifetime of theParticipant). Each Permitted Transferee shall be subject to all therestrictions, obligations, and responsibilities as apply to the Participantunder the Plan and this Agreement and shall be entitled to all the rights ofthe Participant under the Plan, provided that in respect of any PermittedTransferee which is a trust or custodianship, the Option shall becomeexercisable and/or expire based on the employment and termination of employmentof the Participant. All shares of Common Stock obtained pursuant to the Optiongranted 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 documentsreferred to herein or delivered pursuant hereto which form a part hereofcontain the entire understanding of the parties with respect to its subjectmatter. There are no restrictions, agreements, promises, representations,warranties, covenants or undertakings with respect to the subject matter hereofother than those expressly set forth herein and in the Plan. This Agreement,including without limitation the Plan, supersedes all prior agreements and understandingsbetween the parties with respect to its subject matter.

 

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

 

13.           Governing Law.  This Agreement shall be governed by andconstrued and enforced in accordance with the laws of the State of Delawarewithout regard to the provisions governing conflict of laws.

 

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

 

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

 

IN WITNESS WHEREOF, theCompany has caused this Agreement to be duly executed by its duly authorizedofficer and said Participant has hereunto signed this Agreement on his ownbehalf, thereby representing that he has carefully read and understands thisAgreement, the Plan and the Management Stockholders’ Agreement as of the dayand year first written above.

 
|   | **NEIMAN  MARCUS, INC.**   |
|--------|----------------------------|
|   | ** **                 |
|   |                       |
|   | By:                        |   |
|   |                       |
|   |                       |
|   | **PARTICIPANT**            |
|   | ** **                 |
|   | ** **                 |
|   |                       |
|   | [Participant’s  Name] |

 

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