EXHIBIT 10.32


 


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 James J. Gold (“Executive”)
and Bergdorf Goodman, Inc., a New York corporation (“Bergdorf”) and a
wholly owned subsidiary of The Neiman Marcus Group, Inc., a Delaware
corporation (“NMG”).


 


W I T N E S S E T H:


 


WHEREAS, the Executive and
Bergdorf entered into the Confidentiality, Non-Competition and Termination
Benefits Agreement (the “Agreement”) effective as of May 3, 2004, and


 


WHEREAS, the Executive and
Bergdorf 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 Bergdorf, if (i) Bergdorf
terminates Executive’s employment for any reason other than for “Cause,” his “Total Disability,” or his death, or Executive terminates his 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, Bergdorf shall
provide Executive with benefits (“Termination Benefits”) consisting of:


 


(1) 
an amount equivalent to 1.5 times his
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 his termination,
Executive participates in a group medical insurance plan offered by Bergdorf
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, Bergdorf 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) 
Bergdorf 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 Bergdorf, 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 Bergdorf would be required to perform it if
no such succession or assignment had taken place.  If Bergdorf 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 Bergdorf to obtain such
agreement.  As used in this Agreement, “Bergdorf”
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 Bergdorf 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 him by any regulatory agency, for actions or
omissions related to his employment with
Bergdorf, or if Bergdorf reasonably determines in its sole judgment that
Executive has committed any act or omission that would have entitled Bergdorf
to terminate his employment for Cause,
whether such act or omission was committed during his employment with Bergdorf or during the Salary Continuance
Period, then (1) Bergdorf’s obligation to provide Termination Benefits
shall immediately end, and (2) Executive shall repay to Bergdorf any
amounts paid to him as Termination
Benefits within 30 days after a written request to do so by Bergdorf.


 


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


 


(e) 
The Executive may terminate his
employment for Good Reason.  To exercise his right to terminate for Good Reason, the
Executive must provide written notice to Bergdorf of his 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, Bergdorf shall have 30 days to effect that remedy.  If not remedied within that 30-day period,
the Executive may terminate his employment for Good Reason by delivery of
written notice to Bergdorf; 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:


 

















 


10.           In the event Executive is determined to be a
specified employee (as defined by Treasury Regulation Section 1.409A-1(i))
by Bergdorf 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 Bergdorf 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 Bergdorf 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.


 


	
   

  	
   

  	
  BERGDORF GOODMAN, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Nelson A.
  Bangs

  
	
   

  	
  Name:

  	
  Nelson A. Bangs

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/  James J.
  Gold

  
	
   

  	
   

  	
  James J. Gold