EXHIBIT 10.25
TERMINATION AND CHANGE OF CONTROL AGREEMENT
1. This Termination and Change of Control Agreement ("Agreement") is entered
into as of April 17, 2001 between Xxxxxx X. Bangs ("Mr. Bangs" or the
"Executive") and The Neiman Marcus Group, Inc. ("NMG").
2. The Executive is employed "at-will" as Senior Vice President, General
Counsel and Secretary of NMG, and the Executive or NMG may terminate Mr. Bangs'
employment at any time, with or without notice, for any reason. Notwithstanding
this at-will employment relationship, NMG wishes to provide some protection to
the Executive if the Executive's employment ends under certain circumstances.
3. a. While the Executive is employed at-will, if NMG terminates the
Executive's employment other than "for cause" or other than due to
"total disability" or death, NMG agrees to provide the Executive with a
termination package consisting of (a) 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 in regular,
bi-weekly installments following such termination; and (b) continuation
of the medical and dental insurance coverage in which he participates
at the time of such termination (or as such coverage may be changed
from time-to-time for employees generally) for 18 months or until he
starts full-time employment, whichever is sooner. The Executive will
be responsible for paying his portion of monthly premiums for the
medical and dental insurance coverage at the same rate paid by active
employees, and the Executive authorizes NMG to deduct such amounts from
the payments it makes to him. For the purposes of determining whether
or not NMG has terminated the Executive's employment, any material,
adverse change in the terms and conditions of his employment, which
change causes the Executive to resign his/her employment, will be
deemed a termination.
b. If the Executive's services are terminated by a successor to NMG
other than "for cause" or other than due to "total disability" or death
within two years of a change of control of NMG, as a change of control
is defined in Appendix A, or if the Executive resigns his employment
within two years of such a change of control because he is not
permitted to continue in a position comparable in duties and
responsibilities to that which he held before such a change of control,
the Executive shall receive the termination package set forth in
paragraph 3.a.
4. For the purposes of determining the Executive's eligibility for the
termination package set forth in this Agreement:
a. "For cause" means, in NMG's reasonable judgment, a breach of duty by
the Executive in the course of his employment involving fraud, acts of
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dishonesty (other than inadvertent acts or omissions), or moral
turpitude, repeated insubordination, failure to devote his full working
time and best efforts to the performance of his duties, or conviction
of a felony or other serious criminal offense. Provided that, with
respect to insubordination or devotion of his working time, the
Executive has been provided prior written notice of the problem and
afforded a reasonable opportunity to correct same.
b. "Total Disability" means that, in NMG's reasonable judgment, the
Executive is unable to perform his duties for (a) 80% or more of the
normal working days during six consecutive calendar months or (b) 50%
or more of the normal working days during twelve consecutive calendar
months.
c. "Change of Control" has the meaning set forth in Appendix A.
5. Payment by NMG of the termination package set forth in paragraph 3
constitutes full satisfaction of NMG's obligations to the Executive, if any,
(including the right to any severance payments) which arise from or relate in
any way to the termination of the Executive's employment. However, nothing in
this Agreement is intended to limit any earned, vested benefits (other than any
entitlement to severance pay) that the Executive may have under the applicable
provisions of any benefit plan in which the Executive is participating at the
time of his termination of employment or resignation.
6. The unenforceability of any provision of this Agreement shall not affect the
enforceability of any other provision of this Agreement.
7. This Agreement contains the entire agreement between the parties and
supersedes all prior agreements and understandings, oral or written, with
respect to the termination of the Executive's at--will employment and the
subject matter of the Agreement. This Agreement may not be changed orally. It
may be changed only by written agreement signed by the party against whom any
waiver, change, amendment, modification or discharge is sought.
8. The validity, performance and enforceability of this Agreement will be
determined and governed by the laws of the Massachusetts without regard to its
conflict of laws principles.
The Neiman Marcus Group, Inc.
/s/ XXXXXX X. BANGS /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Bangs
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APPENDIX A
A Change of Control will occur for purposes of this Agreement:
(i) upon the consummation of any transaction or series of transactions
under which the Company is merged or consolidated with any other company, other
than a merger or consolidation which would result in the shareholders of the
Company immediately prior thereto continuing to own (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
the Company, the acquiring entity or such surviving entity outstanding
immediately after such merger or consolidation in substantially the same
proportion such shareholders held the voting securities of the company
immediately prior to the merger or consolidation;
(ii) if any person or group (as used in section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (other than the Company,
any trustee or other fiduciary holding securities under an employee benefit plan
of the Company, or any company owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of securities of the Company representing
more than 40% of (a) the shares of the Company's Class B Common Stock then
outstanding or (b) the total voting power (other than in the election of
directors) of all securities of the Company then outstanding; or
(iii) if, during any period of twenty-four consecutive months,
individuals who at the beginning of such period constitute the Board of
Directors, and any new director whose election or nomination for election by the
Company's shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved, cease for any reason (other than death or disability) to constitute at
least a majority thereof; or
(iv) the complete liquidation of the Company or the sale or disposition
by the Company of all or substantially all of the Company's assets, other than a
liquidation of the Company into a wholly-owned subsidiary.
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