EXHIBIT 10.39


 


AMENDMENT NO. 1 TO THE NEIMAN MARCUS GROUP,
INC.


KEY EMPLOYEE DEFERRED COMPENSATION PLAN


(Amended and Restated Effective January 1,
2008)


 


Pursuant to
the provisions of Section 8.1 thereof, The Neiman Marcus Group, Inc.
Key Employee Deferred Compensation Plan (Amended and Restated Effective January 1,
2008) (the “Plan”) is hereby amended effective as of January 1, 2008 in
the following respects only:


 


FIRST:  Section 2.4
of the Plan is hereby amended by restatement in its entirety to read as follows:


 


2.4                                 “Bonus”
means an annual cash bonus payable by an Employer to an employee, including any
portion of such a bonus that would have been payable to the employee but for an
election under Section 125 of the Code, a deferral election under the Savings
Plan or the Retirement Savings Plan, or a deferral election under this Plan,
provided, however, that the term “Bonus” shall not include any amount arising
from, or paid under or in connection with a long-term incentive program, or a
stock appreciation right, stock option, restricted stock or stock unit, or
other equity-based incentive award, plan or arrangement.  A “Performance
Bonus” means any Bonus that satisfies the requirements to be
performance-based compensation within the meaning of Treasury Regulation Section 1.409A-1(e).


 


SECOND: 
Section 2.10 of the Plan is hereby amended by restatement in its
entirety to read as follows:


 


2.10                           “Compensation”
means Base Pay and any Performance Bonus payable by an Employer to an employee.


 


THIRD:  Section 2.26
of the Plan is hereby amended by restatement in its entirety to read as
follows:


 


2.26                           “Separation
from Service” means the termination of services provided by a
Participant to his or her Employer (as defined in (c) below), whether
voluntary or involuntary, as determined by the Committee in accordance with
Treasury Regulation Section 1.409A-1(h).  More specifically and as
provided by such regulations, in determining whether a Participant has
experienced a Separation from Service, the following provisions shall apply:


 

















 


(a)                                  Except
as otherwise provided in subsection (b) below, a Separation from Service
will occur when such Participant has experienced a termination of employment
with the Employer.  A Participant will be considered to have experienced a
termination of employment when the facts and circumstances indicate that the
Participant and his or her Employer reasonably anticipate that either (A) no
further services will be performed for the Employer after a certain date, or (B) that
the level of bona fide services the Participant will perform for the Employer
after such date (whether as an employee or as an independent contractor) will
permanently decrease to no more than 20% of the average level of bona fide
services performed by the Participant (whether as an employee or an independent
contractor) over the immediately preceding 36-month period (or the full period
of services to the Employer if the Participant has been providing services to
the Employer less than 36 months).


 


If a
Participant is on military leave, sick leave, or other bona fide leave of
absence, the employment relationship between the Participant and the Employer
will be treated as continuing, provided that the period of the leave of absence
does not exceed six months, or if longer, so long as the Participant has a
right to reemployment with the Employer under an applicable statute or by
contract.  If the period of a military leave, sick leave, or other bona
fide leave of absence exceeds six months and the Participant does not have a right
to reemployment under an applicable statute or by contract, the employment
relationship will be considered to be terminated for purposes of this Plan as
of the first day immediately following the end of such six-month period.
 In applying the provisions of this paragraph, a leave of absence will be
considered a bona fide leave of absence only if there is a reasonable
expectation that the Participant will return to perform services for the
Employer.


 


(b)                                 For
a Participant who provides services to an Employer as both an employee and an
independent contractor, a
Separation from Service generally will not occur until the Participant has
ceased providing services for the Employer as both an employee and an
independent contractor.  Except as
otherwise provided herein, in the case of an independent contractor a
Separation from Service will occur upon the expiration of the contract (or in
the case of more than one contract, all contracts) under which services are
performed for the Employer, provided that the expiration of such contract or
contracts is determined by the Employer to constitute a good-faith and complete
termination of the contractual relationship between the Participant and the
Employer.  If a Participant ceases providing services for an Employer as
an employee and begins providing services for such Employer as an independent
contractor, the Participant will not be considered to have experienced a
Separation from Service until the Participant has ceased providing services for
the Employer in both capacities, as determined in accordance with the
applicable provisions set forth in subsections (a) and (b) of this
Section.


 


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Notwithstanding the foregoing provisions in this subsection, if a  Participant provides services for an Employer
as both an employee and as a member of the board of directors of an Employer,
to the extent permitted by Treasury Regulation Section 1.409A-1(h)(5), the
services provided by the Participant as a director will not be taken into account
in determining whether the Participant has experienced a Separation from
Service as an employee.


 


(c)                                  For
purposes of this Section only, “Employer”
means:


 


(i)                                     The
entity for whom the Participant performs services and with respect to which the
legally binding right to the payment of benefits under this Plan arises; and


 


(ii)                                  All
other entities with which the entity described in (i) above would be
aggregated and treated as a single employer under Code Section 414(b) (controlled
group of corporations) and Code Section 414(c) (group of trades or
businesses under common control), as applicable; provided, however, that
an  ownership threshold of 50% shall be
used as a substitute for the 80% minimum ownership threshold that appears in,
and otherwise must be used when applying, the applicable provisions of (1) Code
Section 1563 and the regulations thereunder for determining a controlled
group of corporations under Code Section 414(b), and (2) Treasury
Regulation  Section 1.414(c)-2 for
determining the trades or businesses that are under common control under Code Section 414(c).


 


FOURTH: 
Section 4.1 of the Plan is hereby amended by restating subsection (b) thereof
in its entirety to read as follows:


 


(b)                                 Bonuses.  An individual who is an Eligible Employee may
elect to defer a designated whole percentage, not to exceed 15 percent, of any
Performance Bonus for a performance period ending after the date of the
election, by filing an irrevocable election with the Committee at least six
months prior to the end of any such performance period (or such earlier date as
the Committee may prescribe); provided, however, that the Eligible Employee
performs services continuously from the later of the beginning of the
performance period or the date the performance criteria are established through
the date the deferral election is made and that in no event may a deferral
election be made after the Performance Bonus has become readily ascertainable
as determined in accordance with Treasury Regulation Section 1.409A-2(a)(8).  A Participant may revoke or otherwise modify
an existing election, or make a new deferral election, effective with respect
to a Performance Bonus to be paid for any performance period ending more than
six months subsequent to the date of such revocation, modified election, or new
election by filing an irrevocable election with the Committee at least six
months prior to the end of any such performance period (or such earlier date as
the Committee may prescribe); provided, however, that the Eligible Employee performs
services continuously from the later of the beginning of the performance period
or the date the performance criteria are


 


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established through the date of the
revocation, modified election, or new election, and that in no event may such a
revocation, modified, election or new election be made after the Performance
Bonus has become readily ascertainable as determined in accordance with
Treasury Regulation Section 1.409A-2(a)(8).  A Bonus that is not a Performance Bonus shall
not be eligible for deferral under the Plan.


 


FIFTH:  Section 4.2
of the Plan is hereby amended by restatement in its entirety to read as
follows:


 


4.2                                 Matching
Deferrals.  As of each pay date on
which a credit is made to a Participant’s Account with respect to such
Participant’s election to defer Base Pay or Performance Bonus pursuant to Section 4.1,
such Participant’s Employer shall credit to the Participant’s Account a
Matching Deferral equal to:


 


(a)                                  100%
of the sum of (i) the Participant’s Elective Deferrals for such pay date
and (ii) the Participant’s Maximum 401(k) Plan Deferrals for such pay
date, to the extent that such sum does not exceed the first two percent (2%) of
his or her Compensation for such pay date, plus


 


(b)                                 25%
of the sum of (i) the Participant’s Elective Deferrals for such pay date
and (ii) the Participant’s Maximum 401(k)  Plan Deferrals for such
pay date, to the extent that such sum does not exceed the next four percent
(4%) of his or her Compensation for such pay date, minus


 


(c)                                  the Participant’s
Maximum 401(k)  Plan Match for such pay date.


 


SIXTH:  Section 6.1
of the Plan is hereby amended by adding the following sentence to the end of
subsection (a) thereof:


 


Any provision
of Section 6.1 to the contrary notwithstanding, prior to January 1,
2009 (or such earlier date as the Committee may prescribe), each Participant
may make a new election for the time and form of payment from among the options
set forth in this Section for the amounts credited to his or her Account
and such election shall be treated as his or her initial election and therefore
shall not be subject to the rules for election changes provided in Section 6.6;
provided, however, that no such election shall be permitted to change any
payment that would otherwise have been made in 2008 and no such election may
accelerate a payment into 2008 that would not otherwise have been made in 2008.


 


SEVENTH: 
Section 6.2 of the Plan is hereby amended by adding the following
sentence to the end thereof:


 


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In the event a Participant is reemployed by an Employer following a
Separation from Service and any amounts remain credited to such Participant’s
Account attributable to amounts credited to such Account prior to such previous
Separation from Service, such prior Account shall continue to be subject to the
payment provisions of the Plan based on the prior Separation from Service.


 


EIGHTH: 
Section 6.6 of the Plan is hereby amended by restatement in its
entirety to read as follows:


 


6.6                                 Changes in Time and
Form of Payment.  Subject to the
requirements below, a Participant may change his or her previous payment
elections under Section 6.1 regarding the time at which his or her Account
will be paid or begin to be paid, or the form of such payment, or both, provided
that a Participant whose current election with regard to the commencement of
payments is that provided under Section 6.1(b)(i) may not subsequently
elect Section 6.1(b)(ii) but may elect to have the payment commencement
quarter under Section 6.1(b)(i) deferred for at least five but not
more than 10 years.  Notwithstanding the
preceding:


 


(i)  No such change to a prior payment
election shall be effective until at least 12 months after the date on which such
modified election is made.


 


(ii)  No such change to a prior payment
election with respect to a payment at a specified time or pursuant to a fixed
schedule may be made less than twelve months prior to the date the payment is
scheduled to be paid or, in the case of installment payments elected pursuant
to Section 6.1(c)(ii) (which shall be treated for purposes of this
Plan as a “single payment”), twelve months prior to the date the first amount
was scheduled to be paid.


 


(iii)  The payment with respect to any
such subsequent election must be deferred for a period of not less than five
years from the date such payment would otherwise have been paid or, in the case
of installment payments elected pursuant to Section 6.1(c)(ii) (which
shall be treated for purposes of this Plan as a “single payment”), five years
from the date the first amount was scheduled to be paid.


 


A Participant’s election pursuant to this Section to change his or
her previous payment elections shall be made in the manner prescribed by the
Committee and shall become effective and be deemed to be “made” for purposes of
the above provisions of this Section at the time received by the Committee
or its designee, and shall be irrevocable upon such receipt.  In the case of a payment that is scheduled to
be made during a calendar quarter or such other time period longer than one
day, such payment shall be deemed to be scheduled to be paid for purposes of
this Section as of the first day of such time period.


 


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NINTH:  Section 6.8
of the Plan is hereby amended by restating the first and second sentences
thereof in their entirety to read as follows:


 


Any provision of this Plan to the contrary notwithstanding, if a
Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of
the Code as of the date of the Participant’s Separation from Service, no
distribution shall be made or commence with respect to such Participant
pursuant to this Section sooner than six months from the date of such Participant’s
Separation from Service (or, if earlier, the date of the Participant’s death). In
such case, all payments that were scheduled to be made within such six-month
period shall be accumulated (with interest as provided in Section 5.2) and
paid in a single lump sum in the calendar quarter following the calendar
quarter in which such six-month period ends.


 


TENTH:  Section 8.2
of the Plan is hereby amended by restating the last sentence thereof in its
entirety to read as follows:


 


The preceding provisions of this Section 8.2 to the contrary
notwithstanding, the Company may in its discretion terminate the Plan at any
time and provide for accelerated payments of all amounts credited to Accounts
upon a termination of the Plan to the extent such termination and acceleration
of payments satisfies the applicable requirements for such accelerated payment
upon the termination of a plan for purposes of avoiding the tax imposed by Code
Section 409A.


 


IN WITNESS
WHEREOF, this Amendment has been executed on this 22nd day of December, 2008.


 


	
   

  	
   

  	
  THE NEIMAN MARCUS GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Marita O’Dea

  
	
   

  	
  Its:

  	
  Senior Vice President and

  
	
   

  	
   

  	
  Chief Human Resource Officer

  
				



 


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