EXHIBIT 10.33


 


AMENDMENT TO THE


CONFIDENTIALITY, NON-COMPETITION AND


TERMINATION BENEFITS AGREEMENT


 


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


 


W I T N E S S E T H:


 


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


 


WHEREAS,
the Executive and NMG now desire to amend the Agreement for compliance with
Internal Revenue Code Section 409A and the Treasury Regulations
thereunder;


 


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


 


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


 


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


 


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


 


(2) 
if, at the time of her termination,
Executive participates in a group medical insurance plan offered by NMG and
Executive is eligible for and elects to receive continued coverage under such
plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”) or any successor law, NMG will reimburse Executive during the
Salary Continuance Period or, if shorter, the period of such actual COBRA
continuation coverage, for the total amount of the monthly COBRA medical
insurance premiums actually paid by Executive for such continued medical
insurance benefits.


 

















 


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


 


(b) 
NMG shall require any successor or assignee (whether direct or indirect, by
purchase, merger, consolidation, or otherwise) to all or substantially all the
business and/or assets of NMG, by agreement in writing in form and substance
reasonably satisfactory to Executive, expressly, absolutely, and
unconditionally to assume and agree to perform this Agreement in the same
manner and to the same extent that NMG would be required to perform it if no
such succession or assignment had taken place. 
If NMG fails to obtain such agreement by the effective time of any such succession
or assignment and if such failure constitutes Good Reason then the Termination
Benefits to which Executive is entitled upon a termination for Good Reason
pursuant to Paragraph 1(a) shall be the sole remedy of Executive for any
failure by NMG to obtain such agreement. 
As used in this Agreement, “NMG” shall include any successor or assignee
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all the business and/or assets of NMG that executes and
delivers the agreement provided for in this Paragraph 1(b) or that
otherwise becomes obligated under this Agreement by operation of law.


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


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


 


7.             Except as otherwise specifically set forth
herein, all other terms and conditions of the Agreement shall remain in full
force and effect.


 


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


 


	
   

  	
   

  	
  THE
  NEIMAN MARCUS GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Nelson
  A. Bangs

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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