EXHIBIT 10.42


 


THE NEIMAN MARCUS GROUP, INC.


 


SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


(Amended and Restated Effective January 1, 2009)


 


Table of Contents


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE

  	
   

  
	
   

  	
   

  
	
  Purpose and
  History

  	
  1

  
	
   

  	
   

  
	
  Article 1. -
  DEFINITIONS

  	
  2

  
	
  1.1.

  	
  “Actuarial
  Equivalent”

  	
  2

  
	
  1.2.

  	
  “Affiliate”

  	
  2

  
	
  1.3.

  	
  “Basic Plan”

  	
  2

  
	
  1.4.

  	
  “Benefit
  Starting Date”

  	
  2

  
	
  1.5.

  	
  “Board of
  Directors”

  	
  2

  
	
  1.6.

  	
  “Code”

  	
  2

  
	
  1.7.

  	
  “Committee”

  	
  3

  
	
  1.8.

  	
  “Company”

  	
  3

  
	
  1.9.

  	
  “Compensation”

  	
  3

  
	
  1.10.

  	
  “Elected
  Age”

  	
  3

  
	
  1.11.

  	
  “Eligible
  Employee”

  	
  4

  
	
  1.12.

  	
  “ERISA”

  	
  4

  
	
  1.13.

  	
  “Grandfathered
  Rule of 65 Employee”

  	
  4

  
	
  1.14.

  	
  “Minimum
  Salary”

  	
  4

  
	
  1.15.

  	
  “Non-409A
  Participant”

  	
  5

  
	
  1.16.

  	
  “Normal
  Form”

  	
  5

  
	
  1.17.

  	
  “Normal
  Retirement Age”

  	
  5

  
	
  1.18.

  	
  “Normal
  Retirement Date”

  	
  5

  
	
  1.19.

  	
  “Participant”

  	
  5

  
	
  1.20.

  	
  “Participating
  Employer”

  	
  5

  
	
  1.21.

  	
  “Plan”

  	
  6

  
	
  1.22.

  	
  “Plan Year”

  	
  6

  
	
  1.23.

  	
  “Post-2004
  SERP Benefit”

  	
  6

  
	
  1.24.

  	
  “Pre-2005
  SERP Benefit”

  	
  6

  
	
  1.25.

  	
  “Rule of 65
  Employee”

  	
  6

  
	
  1.26.

  	
  “Service”

  	
  7

  
	
  1.27.

  	
  “Social
  Security Benefit”

  	
  7

  
	
  1.28.

  	
  “Spouse”

  	
  8

  
	
  1.29.

  	
  “Termination
  of Employment”

  	
  8

  
	
  1.30.

  	
  “Total SERP Accrued
  Benefit”

  	
  11

  



 

















 


	
  Article 2. –
  PARTICIPATION

  	
  12

  
	
  2.1.

  	
  Continued
  Participation

  	
  12

  
	
  2.2.

  	
  Duration of
  Participation

  	
  12

  
	
  2.3.

  	
  Reduction in
  Participants

  	
  12

  
	
  2.4

  	
  Participation
  After December 31, 2007

  	
  12

  
	
   

  	
   

  	
   

  
	
  Article 3. –
  SOURCE OF BENEFIT PAYMENTS

  	
  14

  
	
   

  	
   

  
	
  Article 4. -
  RETIREMENT BENEFITS

  	
  15

  
	
  4.1.

  	
  Normal or
  Late Retirement Benefit

  	
  15

  
	
  4.2.

  	
  Early
  Retirement Benefit

  	
  16

  
	
  4.3.

  	
  Vested
  Termination Benefit

  	
  18

  
	
  4.4.

  	
  Other
  Termination of Employment; Death

  	
  21

  
	
  4.5

  	
  Benefit
  Starting Date

  	
  21

  
	
  4.6.

  	
  Optional
  Forms of Benefits

  	
  21

  
	
  4.7.

  	
  Forfeiture
  of Benefits

  	
  23

  
	
  4.8.

  	
  Surviving
  Spouse Benefit

  	
  23

  
	
  4.9.

  	
  Accelerated
  Payment

  	
  24

  
	
  4.10.

  	
  Reemployment
  After Retirement

  	
  24

  
	
  4.11.

  	
  Code Section
  409A Transition and Grandfathered Benefits

  	
  25

  
	
   

  	
   

  	
   

  
	
  Article 5. -
  COMMITTEE

  	
  29

  
	
  5.1.

  	
  Plan Administration
  and Interpretation

  	
  29

  
	
  5.2.

  	
  Powers,
  Duties Procedures, etc.

  	
  29

  
	
  5.3.

  	
  Information

  	
  30

  
	
  5.4.

  	
  Indemnification
  of Committee

  	
  30

  
	
   

  	
   

  	
   

  
	
  Article 6. –
  AMENDMENT AND TERMINATION

  	
  31

  
	
  6.1.

  	
  Amendments

  	
  31

  
	
  6.2.

  	
  Termination
  of Plan

  	
  31

  
	
   

  	
   

  	
   

  
	
  Article 7. -
  MISCELLANEOUS

  	
  32

  
	
  7.1.

  	
  Nonassignability

  	
  32

  
	
  7.2.

  	
  Limitation
  on Participant’s Rights

  	
  32

  
	
  7.3.

  	
  Participants
  Bound

  	
  32

  
	
  7.4.

  	
  Receipt and
  Release

  	
  32

  
	
  7.5.

  	
  No Guarantee
  of Tax Consequences

  	
  33

  
	
  7.6.

  	
  Governing
  Law

  	
  33

  
	
  7.7.

  	
  Headings and
  Subheadings

  	
  33

  



 


ii

















 


THE NEIMAN MARCUS GROUP, INC.


 


SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN


 


(Amended and Restated Effective January 1, 2009)


 


Purpose and History


 


The Company
originally adopted this Plan, effective August 7, 1987, for a select group
of management personnel in order to


 


(a)                                  attract,
retain and motivate qualified management personnel;


 


(b)                                 facilitate
the retirement of management personnel; and


 


(c)                                  provide
survivor income for the spouses of management personnel.


 


The Company
has previously made amendments to the Plan to make certain changes and
clarifications.  The Company is hereby
amending and restating the Plan to make changes intended to bring the Plan into
compliance with the requirements of and thereby avoid the tax imposed pursuant
to Section 409A of the Code, and the Plan shall be interpreted and
administered in a manner consistent with such intent.


 


The Plan is
intended to be “a plan which is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a select group
of management or highly compensated employees” within the meaning of Sections
201(2) and 301(a)(3) of ERISA, and shall be interpreted and
administered to the extent possible in a manner consistent with that intent.


 

















 


Article 1.
- DEFINITIONS


 


Wherever used
herein, the following terms have the meanings set forth below, unless a
different meaning is clearly required by the context:


 


1.1.                              “Actuarial Equivalent” shall
have the meaning set forth in the Basic Plan; provided, however, that it is
intended that “Actuarial Equivalent” be determined in a manner that does not
cause a tax to be applicable to a Plan benefit under Code Section 409A and
if application of said meaning set forth in the Basic Plan in a particular
circumstance would result in a tax being applicable to a Participant under Code
Section 409A, the Committee shall establish such other reasonable
actuarial factors for such purpose as it shall determine to be appropriate to
avoid such result.


 


1.2.                              “Affiliate” means any
corporation or organization that together with the Company is treated as a
single employer under Section 414(b) or (c) of the Code.


 


1.3.                              “Basic Plan” means The Neiman
Marcus Group, Inc.  Retirement Plan
as amended from time to time.  Reference
to any Article or Section of the Basic Plan shall include reference
to any comparable or successor provisions of the Basic Plan as amended from
time to time.


 


1.4.                              “Benefit Starting Date” shall be
the date as of which the Participant’s Post-2004 SERP Benefit shall commence in
payment and shall have the meaning set forth in Section 4.5.


 


1.5.                              “Board of Directors” means the
Board of Directors of the Company.


 


1.6.                              “Code”
means the Internal Revenue Code of 1986, as amended from time to time.  Reference to any Section or subsection
of the Code includes reference to any comparable or succeeding provisions of
any legislation which amends, supplements or replaces such Section or
subsection.


 


2

















 


1.7.                              “Committee”
means the Employee Benefits Committee appointed by the Board of Directors or
its Executive Committee.


 


1.8.                              “Company” means The Neiman
Marcus Group, Inc., a Delaware corporation, and any successor, including a
successor by purchase of all or substantially all of its assets or business
that expressly assumes the obligations of the Company under this Plan.


 


1.9.                              “Compensation” means, with
respect to any given period, the aggregate compensation, exclusive of any
bonuses, paid to an Eligible Employee by one or more Participating Employers
during such period, whether before or after he or she becomes an “Eligible
Employee.”  “Compensation” shall be
determined before any reduction under Section 125  or 401(k) of the Code or under any
deferred compensation plan or arrangement, but shall not otherwise include any
Participating Employer contributions under retirement or other benefit plans or
arrangements, or any expense reimbursements, imputed compensation, property,
payments of compensation previously deferred, or incentive payments earned
through a wellness or similar program sponsored by a Participating Employer.


 


1.10.                        “Elected Age” means age 62;
provided, however, that (i) prior to January 1, 2009 (or such earlier
date as the Committee may prescribe), a Participant who has not had a
Termination of Employment prior to December 15, 2008 and who is not
entitled to commence receiving his or her Post -2004 SERP Benefit prior to January 1,
2009 shall be permitted to elect an age other than 62 that is not lower than 55
and not greater than 65, in the time and manner prescribed by the Committee for
such election and such election shall be irrevocable except as provided in (ii) below;
and (ii) on or after January 1, 2009, a Participant shall be
permitted to change his or her Elected Age in such manner as the Committee may
prescribe provided that any such subsequent election does not take effect for
at least 12 months after the date the election is made, such subsequent
election is made at least 12 months prior to the date the Participant will 


 


3

















 


attain
his or her Elected Age as currently in effect, and the subsequent election
results in a new Elected Age that is at least five years later than the Elected
Age in effect at the time of the election, provided that a Participant shall
not be permitted to elect an age beyond age 65. 
All elections permitted pursuant to this Section shall be made in a
manner that complies with the requirements applicable to making payment
elections under Code Section 409A.


 


1.11.                        “Eligible Employee” means each
employee of a Participating Employer who, on any August 1:


 


(a)                                  is employed in an executive,
administrative, or professional capacity as defined in Section 13(a)(1) of
the Fair Labor Standards Act, as amended, and the regulations thereunder,


 


(b)                                 participates in the Basic Plan,


 


(c)                                  had a base salary on the
immediately preceding December 31 at least equal to the Minimum Salary,
and


 


(d)                                 is not employed as a
salesperson.


 


1.12.                        “ERISA” means the Employee
Retirement Income Security Act of 1974, as from time to time amended.


 


1.13.                        “Grandfathered Rule of 65
Employee” means a Rule of 65 Employee who either:  (i) expressly elected to remain eligible
to participate in the Basic Plan in accordance with an election made in 2007,
or (ii) implicitly elected to remain eligible to participate in the Basic
Plan by failing to make a timely election to the contrary and thereby
acquiescing to such an election by default.


 


1.14.                        “Minimum Salary” means:


 


(a)                                  for
December 31 of each of the years 1992 through 1995, the amount in effect
under Section 414(q)(1)(B) of the Code for the year following such December 31;
and


 


4

















 


(b)                                 for
December 31, 1996, $100,000; and


 


(c)                                  for
December 31, 1997, and each December 31 thereafter, $160,000.


 


1.15.                        “Non-409A Participant” means a Participant who, on
account of his or her cessation of employment with a Participating Employer
before January 1, 2005 or other circumstances that resulted in his or her
ceasing to accrue a benefit under the Plan prior to such date, has a total
benefit accrued pursuant to the Plan that was fully vested as of December 31,
2004 and has not accrued any increase with respect to such benefit after December 31,
2004 attributable to Compensation or Service after such date or that otherwise
would not be treated as an amount deferred before January 1, 2005 pursuant
to Treasury Regulation Section 1.409A-6.


 


1.16.                        “Normal Form” means a form of
benefit payable monthly to an individual during his or her lifetime, the first
payment to be due on the date of the commencement of his or her benefits under
the Plan, and the last payment to be due for the calendar month in which his or
her death occurs.


 


1.17.                        “Normal Retirement Age” means
the later of (a) the date on which the Participant attains age 65 or (b) the
fifth anniversary of the date he or she first performed an Hour of Service
under the Basic Plan.


 


1.18.                        “Normal Retirement Date” means
the first day of the calendar month coinciding with or next following the date
on which the Participant attains his or her Normal Retirement Age.


 


1.19.                        “Participant” means any
individual who participates in the Plan in accordance with Article 2.


 


1.20.                        “Participating Employer” means
the Company and any Affiliate of the Company that is a Participating Employer
in the Basic Plan.


 


5

















 


1.21.                        “Plan” means The Neiman Marcus
Group, Inc.  Supplemental Executive
Retirement Plan as set forth herein and in all subsequent amendments hereto.


 


1.22.                        “Plan Year” means the 52 or 53
week period ending on the Saturday nearest to July 31 of each year.


 


1.23.                        “Post-2004 SERP Benefit” means a
monthly benefit payable in the Normal Form equal to the monthly Total SERP
Benefit payable in the Normal Form minus a monthly benefit derived
from the Pre-2005 SERP Benefit converted to an Actuarially Equivalent payment
in the Normal Form as determined in accordance with Section 4.1, 4.2
or 4.3, as applicable.  The Post-2004
SERP Benefit shall be subject to the limitations set forth in Section 4.11(d).


 


1.24.                        “Pre-2005 SERP Benefit” means
the present value of the amount to which the Participant would have been
entitled under the Plan if he or she voluntarily terminated services without
cause on December 31, 2004, and received a payment of the benefits
available from the Plan on the earliest possible date allowed under the Plan to
receive a payment of benefits following the termination of services, and
received the benefits in the form with the maximum value, as determined in
accordance with Treasury Regulation Section 1.409A-6(a)(3)(i) in a
manner that results in the largest possible amount permitted by such provision,
increased as permitted in accordance with Treasury Regulation Section 1.409A-6(a)(3)(iv).  The Pre-2005 SERP Benefit is intended to be
exempt from the application of Code Section 409A as an amount that was
deferred prior to January 1, 2005 pursuant to Treasury Regulation Section 1.409A-6(a) and
shall be determined in a manner consistent therewith.  The Pre-2005 SERP Benefit shall be subject to
the limitations set forth in Section 4.11(d).


 


1.25.                        “Rule of 65 Employee” means
an Eligible Employee as of December 31, 2007 who had at least ten years of
Vesting Service under the Basic Plan as of December 31, 2007 and 


 


6

















 


whose
age as of December 31, 2007, when added to the number of his or her years
of Vesting Service under the Basic Plan as of December 31, 2007, was equal
to or in excess of 65.


 


1.26.                        “Service” means the period
measured in years equal to years of Vesting Service determined under the Basic
Plan, subject to the following special rules:


 


(a)                                  Years of Vesting
Service, if any, prior to August 2, 1987 shall be determined in accordance
with the rules of the Pension Plan for Employees of Carter Hawley Hale
Stores, Inc.  that applied on August 1,
1987 to employees hired after June 30, 1980; and


 


(b)                                 A Participant shall be
credited with a full year of Service for each partial year of Vesting Service
interrupted by a Period of Severance, provided that (i) the Participant is
credited with at least 1,000 Hours of Service during such partial year of
Vesting Service, and (ii) no more than one year of Service shall be
credited during any 12-month period.


 


1.27.                        “Social Security Benefit” means,
in the case of each Participant, the estimated amount of the monthly primary
old age insurance benefit available to him or her at age 65 under the Social
Security Act as in effect on the earliest of his or her Normal Retirement Date,
Termination of Employment or death.  The
amount shall be computed upon the assumption that the Participant has been
continuously covered under said Act since the later of 1951 or his or her 21st
birthday, and that his or her remuneration for employment for the calendar year
preceding the date of his or her Normal Retirement, Termination of Employment
or death, whichever is earliest, was equal to that portion of his or her
compensation for such year that would be subject to tax under Section 3101(a) of
the Code without the dollar limitation of Code Section 3121(a)(1), and his
or her remuneration for each prior calendar year was equal to the assumed
remuneration for the subsequent year divided by 1.06.  If a Participant has a Termination of


 


7
















 


Employment
for any reason, or becomes Totally and Permanently Disabled, prior to his or
her Normal Retirement Date, in determining his or her Social Security Benefit,
earnings for the calendar year of such termination or disability and each
subsequent calendar year prior to his or her Normal Retirement Date shall be
assumed to be equal to that portion of his or her compensation for the calendar
year prior to the year of termination or disability that would be subject to
tax under Section 3101(a) of the Code without the dollar limitation
of Code Section 3121(a)(1).


 


1.28.                        “Spouse” means a person of the
opposite sex of the Participant who is the lawfully married husband or wife of
a Participant at the time of the Participant’s death or, if earlier, as of the first
day of the first month for which benefits are payable under the Plan.


 


1.29.                        “Termination of Employment”
means a termination of services provided by a Participant to his or her
Employer (as defined below), whether voluntarily or involuntarily, as determined
by the Company in accordance with the rules for determining when a service
provider has incurred a separation from service under Treasury Regulation Section 1.409A-1(h).
More specifically and as provided by such regulations, in determining whether a
Participant has incurred a Termination of Employment, the following provisions
shall apply:


 


(a)                                  Except as otherwise
provided in this definition, a Termination of Employment will occur when the
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 (i) no further services will be
performed for the Employer after a certain date, or (ii) 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 percent  of



 


8

















 


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 6 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 6 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 6-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 both as an employee and as an independent
contractor, a Termination of
Employment generally will not occur until the Participant has ceased providing
services for the Employer  both as an
employee and as an independent contractor. 
Except as otherwise provided herein, in the case of an independent contractor
a Termination of Employment 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 Company to constitute a good-faith and 


 


9

















 


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 Termination of Employment until the
Participant has ceased providing services for the Employer in both capacities,
as determined in accordance with the applicable provisions set forth in
subparagraphs (a) and (b) of this definition.


 


Notwithstanding the foregoing provisions in
this subparagraph, 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 Termination of
Employment as an employee.


 


(c)                                  In addition,
notwithstanding the provisions of this definition, where as part of a sale or
other disposition of substantial assets by an Employer to an unrelated buyer, a
Participant would otherwise experience a Termination of Employment as defined above,
the Employer and the buyer shall retain the discretion to specify, and may
specify, that a Participant performing services for an Employer immediately
before the asset purchase transaction and providing services to the buyer after
and in connection with the asset purchase transaction shall not experience a
Termination of Employment for purposes of this Plan and the Participant shall
be bound by same, provided that such transaction and the specification meet the
requirements of Code Section 409A.


 


(d)                                 For purposes of this
definition, “Employer” means:


 


(i)                                     The Company; and


 


10

















 


(ii)                                  All other entities with which the
Company 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.  To identify the group of entities described
in the preceding sentence, 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 (A) Code
Section 1563 and the regulations thereunder for determining a controlled
group of corporations under Code Section 414(b), and (B) Treasury
Regulation § 1.414(c)-2 for determining the trades or businesses that are under
common control under Code Section 414(c).


 


1.30.                        “Total SERP Accrued Benefit”
means the amount determined under the provisions of Section 4.1, Section 4.2
or Section 4.3, as applicable to the Participant as of the date such
amount is being determined.


 


Unless
defined herein, any capitalized word, phrase or term used in this Plan shall
have the meaning given to it in the Basic Plan.


 


11

















 


Article 2.  — PARTICIPATION


 


2.1.                              Continued Participation.  Any individual who was a Participant in the
Plan on December 31, 2008 will, subject to Sections 2.2, 2.3, and 2.4,
continue to be a Participant under the Plan after such date.


 


2.2.                              Duration of Participation.  Subject to Section 2.3, an individual
who has become a Participant in the Plan shall continue to be a Participant as
long as he or she remains an employee of a Participating Employer or is
entitled to a benefit under the Plan, even though his or her base salary after
becoming a Participant later falls below the then applicable Minimum Salary
level specified in Section 1.14.  A
Participant will cease to be a Participant when he or she is neither employed
by a Participating Employer nor entitled to receive a benefit under the Plan.


 


2.3.                              Reduction in Participants.  Notwithstanding any other provision of the
Plan to the contrary, the Committee may terminate the right of any Participant
or Eligible Employee to participate in the Plan if the Committee deems such
action to be necessary to preserve the status of the Plan as “a plan which is
unfunded and is maintained by an employer primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees” within the meaning of Sections 201(2) and 301(a)(3) of
ERISA.  In the event a Participant’s
participation is terminated under this Section 2.3, the Participant shall
not be entitled to any benefits under the Plan except to the extent such
benefits would be protected under Section 6.2 if the Plan were then
terminated.


 


2.4                                 Participation After December 31,
2007.  A Participant who is a Grandfathered Rule of
65 Employee as of December 31, 2007 shall continue to be a Participant under
the Plan thereafter, subject to and in accordance with the terms of the Plan;
provided, however, that if a Grandfathered Rule of 65 Employee has a
Termination of Employment after December 31, 2007, 


 


12

















 


such employee shall
not be treated as a Grandfathered Rule of 65 Employee upon any later
reemployment by a Participating Employer. 
Any provision of the Plan to the contrary notwithstanding, no individual
shall become an Eligible Employee on or after January 1, 2008 who was not
an Eligible Employee on December 31, 2007 and, thus, there shall be no new
Participants in the Plan on and after such date, and a Participant who is not a
Grandfathered Rule of 65 Employee shall remain a Participant in the Plan
after December 31, 2007 as provided in Section 2.2 as long as he or
she is entitled to receive a benefit under the Plan, but no additional benefit
shall accrue for any Participant who is not a Grandfathered Rule of 65
Employee under the Plan after December 31, 2007, subject to the following:


 


(i)                                     the amount of
benefit payable under the Plan after December 31, 2007 with respect to a
Participant who is an Eligible Employee as of such date but who is not a
Grandfathered Rule of 65 Employee shall be determined as if such
Participant had a Termination of Employment effective as of December 31,
2007, provided, however, that any such Participant shall not be treated as
having a Termination of Employment for purposes of determining whether he or
she has attained Normal Retirement Age until his or her actual Termination of
Employment and benefit payments shall not commence to any such Participant
until payments would otherwise commence to such Participant under the terms of
the Plan; and


 


(ii)                                  a Participant who is
not a Grandfathered Rule of 65 Employee shall continue to be entitled to
credit for Service after December 31, 2007 for purposes of determining
whether such Participant has attained the required years of Service to vest in
a benefit or to commence receiving a benefit prior to Normal Retirement Date,
but not for purposes of the calculation of the amount of such benefit.


 


13

















 


Article 3.  — SOURCE OF BENEFIT PAYMENTS


 


Nothing in
this Plan will be construed to create a trust or to obligate the Participating
Employers or any other person to segregate a fund, purchase an insurance
contract, or in any other way currently to fund the future payment of any
benefits hereunder, nor will anything herein be construed to give any employee
or any other person rights to any specific assets of the Participating
Employers or of any other person.  Any
benefits which become payable hereunder shall be paid from the general assets
of the Participating Employers.


 


14

















 


Article 4.  — RETIREMENT BENEFITS


 


4.1.                              Normal or Late Retirement
Benefit.  The Total SERP Accrued Benefit of a
Participant who has a Termination of Employment on or after his or her Normal
Retirement Date will be a monthly amount payable in the Normal Form equal
to (a) minus (b), but not less than zero, where:


 


(a)                                  is 50% of the
Participant’s average monthly Compensation for the highest sixty consecutive
months preceding Termination of Employment, less 60% of the Participant’s Social
Security Benefit, the result multiplied by a fraction the numerator of which is
the Participant’s years of Service (not in excess of 25) and the denominator of
which is 25; and


 


(b)                                 is a monthly
retirement benefit equal to the monthly amount payable to the Participant under
the Basic Plan calculated in the Normal Form as of the first day of the
month coinciding with or next following the Participant’s Termination of
Employment.


 


The Post-2004 SERP Benefit of a
Participant who has a Termination of Employment on or after his or her Normal
Retirement Date shall commence on the Participant’s Benefit Starting Date, and
shall be a monthly benefit equal to the following:


 


(i)                                     the monthly Total
SERP Accrued Benefit payable in the Normal Form as determined above in
this Section 4.1 commencing on the first day of the month coinciding with
or next following the Participant’s Termination of Employment, minus a
monthly benefit derived from the Pre-2005 SERP Benefit as of the first day of
the month coinciding with or next following the Participant’s Termination of
Employment converted to an Actuarially Equivalent monthly benefit payable in
the Normal Form as if commencing on the same date; and


 


15

















 


(ii)                                  the amount in (i) shall
then be increased on an Actuarially Equivalent basis for the six-month period
by which the first day of the month coinciding with or next following the
Participant’s Termination of Employment precedes the Participant’s Benefit
Starting Date.


 


4.2.                              Early Retirement Benefit.  The Total SERP Accrued Benefit of a
Participant who has a Termination of Employment on or after the date on which
he or she has attained age 55 and completed at least 10 years of Service but
prior to his or her Normal Retirement Date will be a monthly amount payable in
the Normal Form, equal to (a) minus (b), but not less than zero, where:


 


(a)                                  is the amount determined under Section 4.1(a) above,
unreduced for early commencement if the Benefit Starting Date is on or after
the Participant’s 62nd birthday, reduced by 1/600th for each month between the
Participant’s 60th and 62nd birthday by which the Benefit Starting Date
precedes the month in which the Participant attains age 62, and reduced further
by 1/240th for each month by which the Benefit Starting Date precedes the month
in which the Participant attains age 60; and


 


(b)                                 is a monthly retirement benefit
equal to the monthly amount that would be payable to the Participant under the
Basic Plan in the Normal Form if said benefit commenced as of the
Participant’s Benefit Starting Date (regardless of the actual date of
commencement of the Participant’s Basic Plan benefit), or if the Participant is
not yet eligible to commence receiving a benefit under the Basic Plan as of the
Participant’s Benefit Starting Date, then the offset provided in this paragraph
(b) shall be a monthly retirement benefit payable in the Normal Form as
of the Participant’s Benefit Starting Date that is Actuarially Equivalent to
the Participant’s benefit under the Basic Plan as of the earliest date said
benefit could commence in pay status under said plan payable in the 


 


16

















 


Normal
Form; provided, however, that if the Participant’s Termination of Employment
occurs on or after the date on which the Participant attains the later of age
62 or his or her Elected Age (or less than six months prior to such date), then
the offset provided in this paragraph (b) shall be determined as if the
three references to “the Participant’s Benefit Starting Date” in the preceding
provisions of this paragraph (b) were instead referring to “the first day
of the month coinciding with or next following the Participant’s Termination of
Employment or, if later, the first day of the month coinciding with or next
following the Participant’s attainment of the later of age 62 or his or her
Elected Age”.


 


The Post-2004 SERP Benefit of a
Participant who has a Termination of Employment on or after the date on which
he or she has attained age 55 and completed at least 10 years of Service but
prior to his or her Normal Retirement Date shall commence on the Participant’s
Benefit Starting Date, and shall be a monthly benefit equal to the monthly
Total SERP Accrued Benefit payable in the Normal Form as determined above
in this Section 4.2 commencing as of the Benefit Starting Date, minus
a monthly benefit derived from the Pre-2005 SERP Benefit as of the Benefit
Starting Date converted to an Actuarially Equivalent monthly benefit payable in
the Normal Form as if commencing on the same date; provided, however, that
if the Participant’s Termination of Employment occurs on or after the date on
which the Participant attains the later of age 62 or his or her Elected Age (or
less than six months prior to such date), then the Participant’s Post-2004 SERP
Benefit shall still commence as of the Participant’s Benefit Starting Date but
shall be equal to the following:


 


(i)                                     the monthly Total
SERP Accrued Benefit payable in the Normal Form as determined above in
this Section 4.2 commencing on the first day of the month coinciding with
or next following the Participant’s Termination of Employment or, if later, the
first day of the month coinciding with or next following the Participant’s


 


17
















 


attainment of the later of age 62 or his or her Elected Age, minus
a monthly benefit derived from the Pre-2005 SERP Benefit as of the first day of
the month coinciding with or next following the Participant’s Termination of
Employment or, if later, the first day of the month coinciding with or next
following the Participant’s attainment of the later of age 62 or his or her
Elected Age converted to an Actuarially Equivalent monthly benefit payable in
the Normal Form as if commencing on the same date; and


 


(ii)                                  the amount in (i) shall
then be increased on an Actuarially Equivalent basis for the period, not to
exceed six months, by which the first day of the month coinciding with or next
following the Participant’s Termination of Employment or, if later, the first
day of the month coinciding with or next following the Participant’s attainment
of the later of age 62 or his or her Elected Age precedes the Participant’s
Benefit Starting Date.


 


4.3.                              Vested Termination Benefit.  The Total SERP Accrued Benefit of a Participant
who has a Termination of Employment after he or she has completed at least 5
years of Service, but before he or she has satisfied the requirements for early
or normal retirement under Sections 4.1 or 4.2 will be a monthly amount payable
in the Normal Form, equal to (a) below (reduced by the applicable factor
set forth in Section 4.2(a) above) minus (b) below, but not less
than zero, where:


 


(a)                                  is 50% of the
Participant’s average monthly Compensation for the highest sixty consecutive
months preceding the Termination of Employment, less 60% of the Participant’s
Social Security Benefit, the result multiplied by a fraction the numerator of
which is the Participant’s years of Service and the denominator of which is the
greater of 25 years or the number of years of Service the Participant would
have had if he or she


 


18

















 


continued employment with a Participating Employer without interruption
until his or her Normal Retirement Date; and


 


(b)                                 is a monthly
retirement benefit equal to the monthly amount that would be payable to the
Participant under the Basic Plan in the Normal Form if said benefit
commenced as of the Participant’s Benefit Starting Date (regardless of the
actual date of commencement of the Participant’s Basic Plan benefit), or if the
Participant is not yet eligible to commence receiving a benefit under the Basic
Plan as of the Participant’s Benefit Starting Date, then the offset provided in
this paragraph (b) shall be a monthly retirement benefit payable in the
Normal Form as of the Participant’s Benefit Starting Date that is
Actuarially Equivalent to the Participant’s benefit under the Basic Plan as of
the earliest date said benefit could commence in pay status under said plan
payable in the Normal Form; provided, however, that if the Participant’s
Termination of Employment occurs on or after the date on which the Participant
attains the later of age 62 or his or her Elected Age (or less than six months
prior to such date), then the offset provided in this paragraph (b) shall
be determined as if the three references to “the Participant’s Benefit Starting
Date” in the preceding provisions of this paragraph (b) were instead
referring to “the first day of the month coinciding with or next following the
Participant’s Termination of Employment or, if later, the first day of the
month coinciding with or next following the Participant’s attainment of the
later of age 62 or his or her Elected Age”.


 


The Post-2004 SERP Benefit of a
Participant who has a Termination of Employment after he or she has completed
at least 5 years of Service, but before he or she has satisfied the
requirements for early or normal retirement under Sections 4.1 or 4.2 shall
commence on the Participant’s Benefit Starting Date, and shall be a monthly
benefit equal to the monthly Total SERP Accrued Benefit payable in the Normal Form as
determined above in this Section 4.3 commencing as of


 


19

















 


the Benefit Starting Date, minus
a monthly benefit derived from the Pre-2005 SERP Benefit as of the Benefit
Starting Date converted to an Actuarially Equivalent monthly benefit payable in
the Normal Form as if commencing on the same date; provided, however, that
if the Participant’s Termination of Employment occurs on or after the date on
which the Participant attains the later of age 62 or his or her Elected Age (or
less than six months prior to such date), then the Participant’s Post-2004 SERP
Benefit shall still commence as of the Participant’s Benefit Starting Date but
shall be equal to the following:


 


(i)                                     the monthly Total
SERP Accrued Benefit payable in the Normal Form as determined above in
this Section 4.3 commencing on the first day of the month coinciding with
or next following the Participant’s Termination of Employment or, if later, the
first day of the month coinciding with or next following the Participant’s
attainment of the later of age 62 or his or her Elected Age, minus a
monthly benefit derived from the Pre-2005 SERP Benefit as of the first day of
the month coinciding with or next following the Participant’s Termination of
Employment or, if later, the first day of the month coinciding with or next
following the Participant’s attainment of the later of age 62 or his or her
Elected Age converted to an Actuarially Equivalent monthly benefit payable in
the Normal Form as if commencing on the same date; and


 


(ii)                                  the amount in (i) shall
then be increased on an Actuarially Equivalent basis for the period, not to
exceed six months, by which the first day of the month coinciding with or next
following the Participant’s Termination of Employment or, if later, the first
day of the month coinciding with or next following the Participant’s attainment
of the later of age 62 or his or her Elected Age precedes the Participant’s
Benefit Starting Date.


 


20

















 


4.4.                              Other Termination of Employment;
Death.  If a Participant has a Termination of
Employment for any reason prior to the time he or she is eligible for a
retirement or vested benefit under Section 4.1, 4.2 or 4.3, no benefit
shall be payable under this Plan.  In the
event a Participant dies prior to the commencement of benefit payments
hereunder, then except as provided in Section 4.8 no benefits shall be
payable hereunder following the Participant’s death.  In the event a Participant dies after the
commencement of benefit payments hereunder, payments shall continue to be made
following his or her death only if the Participant has chosen an optional form
of benefit under Section 4.6 and then only to the extent, if any, provided
under such optional form of benefit.


 


4.5                                 Benefit Starting Date.  A Participant’s Post-2004 SERP Benefit shall
commence on his or her Benefit Starting Date. 
A Participant’s Benefit Starting Date shall be the later of (a) the
first day of the calendar month coinciding with or next following the
Participant’s attainment of his or her Elected Age, or (b) the date that
is six months later than the first day of the calendar month coinciding with or
next following the date of the Participant’s Termination of Employment.  Notwithstanding the preceding, with respect
to a Participant whose Termination of Employment occurred prior to January 1,
2009 but who has not commenced receiving his or her Post-2004 SERP Benefit as
of January 1, 2009, his or her Benefit Starting Date for his or her
Post-2004 SERP Benefit shall be the later of (a) January 1, 2009, (b) the
first day of the calendar month coinciding with or next following the
Participant’s attainment of his or her Elected Age or (c) the date that is
six months later than the first day of the calendar month coinciding with or
next following the date of the Participant’s Termination of Employment.


 


4.6.                              Optional Forms of Benefits.  In lieu of the benefit otherwise payable to a
Participant in the Normal Form, a Participant may elect to receive his or her
Post-2004 SERP


 


21

















 


Benefit on his or
her Benefit Starting Date in any of the following optional forms of Actuarial
Equivalent value:


 


(i)                                     a 5-year or 10-year period certain
and continuous form of annuity under which a reduced pension will be payable
monthly over 60 or 120 months (as elected by the Participant prior to the
Benefit Starting Date) to the Participant during his or her lifetime, the first
payment to be due on the Benefit Starting Date and the last payment to be due
on the first day of the calendar month in which the Participant’s death occurs,
except that if the Participant’s death occurs during the 60-month or 120-month
period, whichever is applicable, following the Benefit Starting Date, such
adjusted pension will be payable monthly to the Participant’s beneficiary for
the remainder of the 60-month or 120-month period, or to the beneficiary’s
estate if he or she should also die within the 60-month or 120-month period,
whichever is applicable;


 


(ii)                                  an optional joint and survivor form
under which a reduced pension will be payable monthly to the Participant during
his or her lifetime and following his or her death 50 percent, 66 2/3 percent,
75 percent or 100 percent of such reduced pension (as elected by the
Participant prior to the Benefit Starting Date) will be payable monthly to the
Participant’s beneficiary (as designated by the Participant prior to the
Benefit Starting Date) during the beneficiary’s remaining lifetime.  If the beneficiary dies after the Participant’s
Benefit Starting Date and while the Participant is alive, the Participant will
continue to receive during his or her remaining lifetime the same amount of
reduced pension as was payable to him or her during the joint lifetimes of the
Participant and his or her beneficiary, with


 


22

















 


the last payment to be due for the calendar
month in which the Participant’s death occurs.


 


The
Committee shall provide a method for election of such options.  The Participant shall be entitled to elect
one of the foregoing options (or to revoke any such election) within such
period prior to the Benefit Starting Date as the Committee may prescribe.  The election of one of the options provided
for in this Section 4.6 shall become effective as of the Benefit Starting
Date, and may not be rescinded or modified thereafter.  Should the Participant’s Spouse or other
beneficiary die prior to such Benefit Starting Date, the Participant’s election
will be void and the Participant’s Post-2004 SERP Benefit will be paid to him
or her as though he or she had made no election unless the Participant makes a
new election prior to the Benefit Starting Date.  Notwithstanding the preceding, if a married
Participant desires to elect an optional form of benefit other than a 50%
contingent annuity form protecting the Participant’s Spouse, such election
shall not be valid without the consent of such Spouse in such form as the
Committee shall prescribe.  If the
Participant fails to elect a form of benefit for his or her Post-2004 SERP
Benefit on or before his or her Benefit Starting Date (or such earlier date as
the Committee may reasonably prescribe for administrative purposes), the
Participant shall be deemed to have elected the Normal Form and the
consent of the Spouse, if any, shall not be required.


 


4.7.                              Forfeiture of Benefits.  Notwithstanding any provision of this Plan to
the contrary, no benefits shall be payable under this Plan with respect to any
Participant who confesses to, or is convicted of, any act of fraud, theft or
dishonesty arising in the course of, or in connection with, his or her
employment with a Participating Employer. 
The Committee’s decision as to the applicability of this Section 4.7
in any case shall be fixed and binding on all persons.


 


4.8.                              Surviving Spouse Benefit.  In the event a Participant dies after
completing at least 5 years of Service but prior to the Benefit Starting Date
for his or her Post-2004 SERP Benefit,


 


23

















 


and such Participant
is survived by a Spouse, a monthly surviving spouse benefit shall be payable to
such Spouse with respect to the Post-2004 SERP Benefit.  Such monthly surviving spouse benefit shall
commence as of the Benefit Starting Date determined using the date of the
Participant’s death as his or her Termination of Employment, if the Participant
was not already terminated, and the date on which the Participant would have
attained the Elected Age, if the Participant had not yet attained such age, had
the Participant survived to such date (the “survivor benefit commencement date”),
and shall end with the month in which the Spouse’s death occurs.  The monthly surviving spouse benefit shall be
the amount to which the Spouse would have been entitled with respect to the
Participant’s Post-2004 SERP Benefit if the Participant had a Termination of
Employment on the date of his or her death (if not already so terminated), had
chosen to have benefit payments commence for his or her Post-2004 SERP Benefit
in the 50% contingent annuity form described in Section 4.6 on the
survivor benefit commencement date, and had survived to and died on the day
following such commencement date.


 


4.9.                              Accelerated Payment.  Any other provision of the Plan to the
contrary notwithstanding, the Committee in its absolute discretion may
accelerate all or any portion of the payment of the Participant’s Post-2004 SERP
Benefit to the extent that such acceleration is a permitted exception under
Treasury Regulation Section 1.409A-3(j)(4) (or other applicable
guidance issued by the Internal Revenue Service) that does not subject the
Participant’s benefit under the Plan to the tax imposed by Code Section 409A.  The amount of any accelerated payment shall
be determined on an Actuarially Equivalent basis.


 


4.10.                        Reemployment After Retirement.  The payment of the Post-2004 SERP Benefit to
a previously terminated Participant shall not cease as of the date of rehire if
the Participant is reemployed by a Participating Employer nor shall the Benefit
Starting Date for a Post-2004 SERP Benefit related to a prior Termination of
Employment that has not yet commenced be


 


24

















 


changed if the
Participant is reemployed by a Participating Employer.  If a previously terminated Participant is
reemployed by a Participating Employer after December 31, 2007, no new
retirement benefit shall accrue under this Plan for such Participant on account
of service after such reemployment as provided in accordance with the
provisions of Article 2. If a previously terminated Participant, other
than a Non-409A Participant, was reemployed by a Participating Employer prior
to January 1, 2008 and accrues a benefit under this Plan on account of
such reemployment, the amount of any new Post-2004 SERP Benefit subsequently
payable with respect to such subsequent employment shall be a separate benefit
computed in accordance with this Article 4 on the basis of Service and
Compensation to the time of such subsequent Termination of Employment, but
shall be reduced by the Actuarial Equivalent of any payments previously made
under the Plan and the Actuarial Equivalent of any future payments yet to be
paid on account of his or her prior Termination of Employment, including lump
sum payments or amounts applied to purchase annuity contracts.  In no event shall the aggregate benefits of
any rehired Participant be greater than the benefit he or she would have
received if all his or her service had been one continuous period of
employment.


 


4.11.                        Code Section 409A
Transition and Grandfathered Benefits.  Any provision of
this amended and restated Plan to the contrary notwithstanding:


 


(a)                                  Non-409A
Participants:  The amount and timing
of the benefits payable under the Plan with respect to a Non-409A Participant
shall be determined solely in accordance with the provisions of the Plan as in
effect as of December 31, 2004, without regard to any changes made to the
Plan or to the Basic Plan after October 3, 2004; provided, however, that
the term “Actuarial Equivalent” as applied with respect to the benefits payable
to a Non-409A Participant shall have the meaning set forth in the Basic Plan as
it may from time to time be amended but only to the extent that the application
of


 


25

















 


any such amendment after October 3, 2004 would not result in a “material
modification” of such benefits.  Such
benefits are intended to remain exempt from the application of Code Section 409A
as amounts that were deferred prior to January 1, 2005 and shall be
administered in a manner consistent with such intent.


 


(b)                                 Participants
Other Than Non-409A Participants: 
The Pre-2005 SERP Benefit, if any, of a Participant (not including a
Non-409A Participant) shall be paid at the time and in the manner provided
pursuant to the provisions of the Plan as in effect as of December 31,
2004, without regard to any changes made to the Plan or to the Basic Plan after
October 3, 2004 other than with respect to determining the amount of the
Pre-2005 SERP Benefit as provided herein; provided, however, that the term “Actuarial
Equivalent” as applied with respect to the Pre-2005 SERP Benefit shall have the
meaning set forth in the Basic Plan as it may from time to time be amended but
only to the extent that the application of any such amendment after October 3,
2004 would not result in a “material modification” of the Pre-2005 SERP
Benefit.  Such benefit is intended to
remain exempt from the application of Code Section 409A as an amount
deferred prior to January 1, 2005 and shall be administered in a manner
consistent with such intent.  The
Pre-2005 SERP Benefit as set forth in Section 1.24 is determined in
accordance with applicable guidance under Code Section 409A as a present
value amount.  The monthly benefit that
becomes payable from such Pre-2005 SERP Benefit present value shall be
determined by converting it at the time it is to commence in payment to the
Normal Form, subject to the limitations set forth below in subsection (d), and
then converting said monthly amount, as so determined in the Normal Form, to
the applicable form of payment, both to be determined on an Actuarially Equivalent
basis.


 


26

















 


(c)                                  Participants
With Transition Benefit Commencement: 
A benefit being paid under this Plan to or with respect to a
Participant, other than a Non-409A Participant, that commenced in payment after
December 31, 2004 and prior to January 1, 2009 shall continue to be
paid after January 1, 2009 in accordance with the form of annuity being
paid as of December 31, 2008; provided, however, that if such benefit
commenced prior to the payment of the Participant’s benefit under the Basic
Plan because the Participant was not eligible for a payment under the Basic
Plan prior to Normal Retirement Age, such monthly benefit payable under this
Plan shall be reduced as of the first day of the month coinciding with or next
following the month in which the Participant reaches Normal Retirement Age by
the amount of the Participant’s Basic Plan benefit that would be payable as of
such date if the benefit commenced in payment as of the such date, with the
reduction calculated as though each such benefit was payable in the Normal
Form.  Such benefit shall not be divided
into a Post-2004 SERP Benefit and Pre-2005 SERP Benefit but instead shall be
treated for all purposes of this amended and restated Plan as a Post-2004 SERP
Benefit.


 


(d)                                 Limitation
on Plan Benefits.  Any provision of
this Plan to the contrary notwithstanding, with respect to any Participant who
is not a Non-409A Participant and whose benefit under this Plan has not yet
commenced in payment as of December 31, 2008:


 


(i)                                     the monthly amount
of the Participant’s Pre-2005 SERP Benefit that would become payable as
determined in the Normal Form as described above in paragraph (b) shall
not exceed, and shall be limited to: (x) a monthly benefit payable in the
Normal Form equal to the Total SERP Accrued Benefit determined in
accordance with Section 4.1 if the Participant’s Termination of Employment


 


27

















 


occurs on or
after Normal Retirement Date, or (y) if the Participant’s Termination of
Employment occurs prior to his or her Normal Retirement Date, a monthly benefit
payable in the Normal Form equal to the Total SERP Accrued Benefit
determined in accordance with Section 4.2 or 4.3, as applicable to the
Participant, but with the amount provided in Section 4.2(b) or
4.3(b), as applicable to the Participant, determined as of the Participant’s
Pre-2005 SERP Benefit commencement date rather than the Participant’s Benefit
Starting Date or such other date as may be provided therein; and


 


(ii)                                  if the Participant’s
Benefit Starting Date for his or her Post-2004 SERP Benefit is prior to the
Participant’s Pre-2005 SERP Benefit commencement date, the limit in clause (d)(i) above
shall be further reduced by the monthly amount of a benefit payable in the
Normal Form commencing as of the same date as the Pre-2005 SERP Benefit
commencement date that is Actuarially Equivalent to the Participant’s Post-2004
SERP Benefit that has already commenced in payment, and


 


(iii)                               if the Participant’s Benefit
Starting Date for his or her Post-2004 SERP Benefit is on or after the
Participant’s Pre-2005 SERP Benefit commencement date and the amount of the
Participant’s Pre-2005 SERP Benefit had to be reduced due to (d)(i) above,
then the amount of the Participant’s Post-2004 SERP Benefit shall be zero.


 


28
















 


Article 5.  - COMMITTEE


 


5.1.          Plan
Administration and Interpretation. 
The Committee shall have complete control over the administration of the
Plan.  The Committee shall have complete
control and authority to determine the rights and benefits and all claims,
demands and actions arising out of the provisions of the Plan of any
Participant, beneficiary, deceased Participant, or other person having or
claiming to have any interest under the Plan. 
All rules and decisions of the Committee shall be uniformly and
consistently applied to all Participants and other claimants in similar
circumstances.  When making a
determination or calculation, the Committee shall be entitled to rely on
information furnished by a Participant, a beneficiary, the Participating Employers,
the legal counsel of a Participating Employer or the Committee, or the
Actuary.  Subject to applicable laws and
regulations, for all purposes of administration and interpretation of the Plan,
the Committee shall consider the Plan as if it were maintained by a single
employer for the benefit of all Participants by whomever employed.  The Committee shall be deemed to be the Plan
administrator with responsibility for complying with any reporting and
disclosure requirements of ERISA.


 


5.2.          Powers,
Duties Procedures, etc..  The
Committee shall have such powers and duties, may adopt such rules and
tables, may act in accordance with such procedures, may appoint such officers
or agents, may delegate such powers and duties, may receive such reimbursements
and compensation, and shall follow such claims and appeal procedures with
respect to the Plan as are permitted or required under the terms of the Basic
Plan, provided, however, that the Committee takes such action in a manner that
would not cause tax to be owed under Code Section 409A.


 


29

















 


5.3.          Information.  To enable the Committee to perform its
functions, the Participating Employers shall supply full and timely information
to the Committee on all matters relating to the compensation of Participants,
their employment, retirement, death, the cause for termination of employment,
and such other pertinent facts as the Committee may require.


 


5.4.          Indemnification
of Committee.  The Company agrees to
indemnify and to defend to the fullest extent permitted by law any officer or
employee of any Participating Employer who serves as a member of the Committee
(including any such individual who formerly served as a member of the
Committee) against all liabilities, damages, costs and expenses (including
attorneys’ fees and amounts paid in settlement of any claims approved by the
Company) occasioned by any act or omission to act in connection with the Plan,
if such act or omission is in good faith.


 


30

















 


Article 6.
— AMENDMENT AND TERMINATION


 


6.1.          Amendments.  The Company shall have the right to amend
this Plan from time to time by resolution of the Board of Directors or its
Executive Committee and to amend or cancel any amendments.  Any such amendment shall be stated in an
instrument in writing, executed by the Company in the same manner as this Plan.


 


6.2.          Termination
of Plan.  This Plan is strictly a
voluntary undertaking on the part of the Company and shall not be deemed to constitute
a contract between the Company and any Eligible Employee (or any other
employee) or a consideration for, or an inducement or condition of employment
for, the performance of services by any Eligible Employee (or other employee).  The Company reserves the right to terminate
this Plan at any time and, in the event of such termination, to pay no benefits
to any Participant who has neither completed 5 years of Service nor attained
age 65.  No such termination shall result
in the reduction of (a) benefits that have commenced before the date of
termination, or (b) benefits accrued as of that date by any Participant
who has completed at least 5 years of Service or attained age 65 by that date;
provided, however, that the Company reserves the right in its sole discretion
to provide for accelerated payment of a Participant’s Post-2004 SERP Benefit by
payment in the form of an Actuarially Equivalent single lump sum to the extent
that such acceleration is permitted upon plan termination under Treasury
Regulation Section 1.409A-3(j)(4)(ix) (or other similar applicable
guidance issued by the Internal Revenue Service) that does not subject the
Participant’s benefit under the Plan to the tax imposed by Code Section 409A.


 


31

















 


Article 7.
- MISCELLANEOUS


 


7.1.          Nonassignability.  None of the benefits, payments, proceeds or
claims of any Participant or beneficiary shall be subject to any claim of any
creditor and, in particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor, nor shall any Participant
or beneficiary have any right to alienate, anticipate, commute, pledge,
encumber or assign any of the benefits or payments or proceeds which he or she
may expect to receive, contingently or otherwise, under this Plan.


 


7.2.          Limitation
on Participant’s Rights. 
Participation in this Plan shall not give any Eligible Employee the
right to be retained in the employ of a Participating Employer or any right or
interest in the Plan other than as herein provided.  Each Participating Employer reserves the
right to dismiss any Eligible Employee without any liability for any claim
against the Participating Employer, except to the extent provided herein.


 


7.3.          Participants
Bound.  Any action with respect to
this Plan taken by the Committee, the Company, or any other Participating
Employer, or any action authorized by or taken at the direction of the
Committee, the Company, or any other Participating Employer, shall be
conclusive upon all Participants and beneficiaries entitled to benefits under
the Plan.


 


7.4.          Receipt
and Release.  Any payment to any
Participant or beneficiary in accordance with the provisions of this Plan
shall, to the extent thereof, be in full satisfaction of all claims against the
Company, any other Participating Employer, and the Committee, and the Committee
may require such Participant or beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect.  If any Participant or beneficiary is
determined by the Committee to be incompetent by reason of physical or mental
disability (including minority) to give a valid receipt and release, the
Committee may cause the payment or 


 


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payments becoming
due to such person to be made to another person for his or her benefit without
responsibility on the part of the Committee, the Company, or any other
Participating Employer to follow the application of such funds.


 


7.5.          No Guarantee of
Tax Consequences.  No person
connected with the Plan in any capacity, including, but not limited to, the
Employers and any Affiliate and their respective directors, officers, agents
and employees, makes any representation, commitment or guarantee that any tax
treatment, including, but not limited to, federal, state and local income,
estate and gift tax treatment, will be applicable with respect to any amounts
deferred or payable under the Plan or that such tax treatment will apply to or
be available to a Participant on account of participation in the Plan.


 


7.6.          Governing
Law.  This Plan shall be construed,
administered, and governed in all respects under and by the internal laws (and
not principles relating to conflict of laws) of the State of Texas except when
superseded by federal law.  If any
provision shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof shall continue to be fully
effective.


 


7.7.          Headings
and Subheadings.  Headings and
subheadings in this Plan are inserted for convenience only and are not to be
considered in the construction of the provisions hereof.


 


IN WITNESS WHEREOF, the Company has caused
this amended and restated Plan to be executed by its duly authorized officer on
this 22nd day of December,
2008, to be effective as of the first day of January, 2009.


 




	
   

  	
   

  	
   

  	
     THE NEIMAN
  MARCUS GROUP, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
     /s/  Marita
  O’Dea

  
	
   

  	
   

  	
  Its:

  	
     Senior Vice President and

  
	
   

  	
   

  	
   

  	
     Chief Human Resource
  Officer

  






 


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