RESPECTS, THE PRIOR AGREEMENT SHALL REMAIN IN
FULL FORCE AND EFFECT, INCLUDING WITH RESPECT TO
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ANY AMOUNTS PAYABLE OR BENEFITS TO BE PROVIDED PRIOR TO AND OTHERWISE NOT IN
CONNECTION WITH A CHANGE OF CONTROL; PROVIDED, THAT IN NO EVENT SHALL PAYMENTS
OR BENEFITS PROVIDED PURSUANT TO THE PRIOR AGREEMENT OR ANY OTHER SEVERANCE
AGREEMENT OR POLICY ENTITLE EXECUTIVE TO A DUPLICATION OF PAYMENTS AND BENEFITS
PURSUANT TO THIS AGREEMENT AND, IN THE EVENT OF AN ANTICIPATORY TERMINATION, ANY
AMOUNT PAYABLE HEREUNDER SHALL BE OFFSET AND REDUCED BY THE AMOUNT OF ANY
TERMINATION PAYMENTS OR BENEFITS PREVIOUSLY PROVIDED TO EXECUTIVE UNDER THE
PRIOR AGREEMENT OR ANY OTHER SEVERANCE ARRANGEMENT WITH THE COMPANY.
B.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THIS AGREEMENT SHALL NOT
INTERFERE IN ANY WAY WITH THE RIGHT OF THE COMPANY TO REDUCE EXECUTIVE'S
COMPENSATION OR OTHER BENEFITS OR TERMINATE EXECUTIVE'S EMPLOYMENT, WITH OR
WITHOUT CAUSE.
ANY RIGHTS THAT EXECUTIVE SHALL HAVE IN THAT REGARD SHALL BE AS
SET FORTH IN ANY APPLICABLE EMPLOYMENT AGREEMENT BETWEEN EXECUTIVE AND THE
COMPANY.
THIS AGREEMENT MAY BE CHANGED ONLY BY A WRITTEN AGREEMENT EXECUTED BY
THE COMPANY AND EXECUTIVE.
15.
Counterparts.
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the 1st day of
April, 2005.
THE NEIMAN MARCUS GROUP, IN.C
By:
Nelson A. Bangs
Senior Vice President & General Counsel
Executive
CERTAIN DEFINITIONS
As used in this Agreement, and unless the context requires a different meaning,
the following terms, when capitalized, have the meaning indicated:
I.
"AFFILIATE" MEANS, WITH RESPECT TO ANY ENTITY, ANY OTHER
CORPORATION, ORGANIZATION, ASSOCIATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR
OTHER TYPE OF ENTITY, WHETHER INCORPORATED OR UNINCORPORATED, DIRECTLY OR
INDIRECTLY CONTROLLING OR CONTROLLED BY OR UNDER DIRECT OR INDIRECT COMMON
CONTROL WITH SUCH ENTITY.
II.
"BASE SALARY" MEANS EXECUTIVE'S ANNUAL RATE OF BASE SALARY IN
EFFECT ON THE DATE IN QUESTION.
III.
"BOARD" MEANS THE BOARD OF DIRECTORS OF THE COMPANY.
IV.
"BONUS" MEANS THE AMOUNT PAYABLE TO EXECUTIVE UNDER THE COMPANY'S
APPLICABLE ANNUAL INCENTIVE BONUS PLAN WITH RESPECT TO A FISCAL YEAR OF THE
COMPANY.
V.
"CAUSE" MEANS
(1)
THE WILLFUL AND CONTINUED FAILURE BY EXECUTIVE TO SUBSTANTIALLY
PERFORM DUTIES CONSISTENT WITH EXECUTIVE'S POSITION WITH THE COMPANY (OTHER THAN
ANY SUCH FAILURE RESULTING FROM INCAPACITY DUE TO PHYSICAL OR MENTAL ILLNESS OR
TERMINATION BY EXECUTIVE FOR GOOD REASON), AFTER A DEMAND FOR SUBSTANTIAL
PERFORMANCE IS DELIVERED TO EXECUTIVE BY THE BOARD, TOGETHER WITH A COPY OF THE
RESOLUTION OF THE BOARD THAT SPECIFICALLY IDENTIFIES THE MANNER IN WHICH THE
BOARD BELIEVES THAT EXECUTIVE HAS NOT SUBSTANTIALLY PERFORMED EXECUTIVE'S
DUTIES, WHICH RESOLUTION MUST BE PASSED BY AT LEAST 2/3 OF THE ENTIRE BOARD AT A
MEETING CALLED FOR THE PURPOSE AND AFTER AN OPPORTUNITY FOR EXECUTIVE AND
EXECUTIVE'S COUNSEL TO BE HEARD BY THE BOARD, AND EXECUTIVE HAS FAILED TO RESUME
SUBSTANTIAL