TERMINATION AND CHANGE OF CONTROL AGREEMENT
1. This Termination and Change of Control Agreement ("Agreement") is entered
into as of October 31, 2001 between Xxxxxx X'Xxx Xxxxx ("Xx. X'Xxx" or the
"Executive") and The Neiman Marcus Group, Inc. ("NMG").
2. Xx. X'Xxx is employed "at-will" as Vice President of Human Resources of NMG,
and Xx. X'Xxx or NMG may terminate Xx. X'Xxx'x employment at any time, with
or without notice, for any reason. Notwithstanding this at-will employment,
NMG wishes to provide some protection to Xx. X'Xxx if the Executive's
employment ends under certain circumstances.
3. a. While Xx. X'Xxx is employed at-will, if NMG terminates Xx. X'Xxx'x
employment other than "for cause" or other than due to "total disability" or
death, NMG agrees to provide Xx. X'Xxx with a termination package consisting
of (a) 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
in regular, bi-weekly installments following such termination; and
(b) continuation of the medical and dental insurance coverage in which she
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 she
starts full-time employment, whichever is sooner. Xx. X'Xxx will be
responsible for paying her portion of monthly premiums for the medical and
dental insurance coverage at the same rate paid by active employees, and
Xx. X'Xxx authorizes NMG to deduct such amounts from the payments it makes to
her. 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 her employment (including the relocation of Executive's place
of business 50 miles or more from the current location), which change causes
the Executive to resign her employment, will be deemed a termination.
b. If Xx. X'Xxx'x 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 her employment within two years of such a
change of control because she is not permitted to continue in a position
comparable in duties and responsibilities to that which she held before such
a change of control, Xx. X'Xxx shall receive the termination package set
forth in paragraph 3.a.
4. For the purposes of determining Xx. X'Xxx'x eligibility for the termination
package set forth in this Agreement:
a. "For cause" means, in NMG's reasonable judgment, a breach of duty by Xx.
X'Xxx in the course of her employment involving fraud, acts of dishonesty
(other than inadvertent acts or omissions), or moral turpitude, repeated
insubordination,
failure to devote her full working time and best efforts to the performance
of her duties, or conviction of a felony or other serious criminal offense.
Provided that, with respect to insubordination or devotion of her working
time, Xx. X'Xxx 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, Xx. X'Xxx is
unable to perform her 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 Xx. X'Xxx, if any,
(including the right to any severance payments) which arise from or relate in
any way to the termination of Xx. X'Xxx'x employment. However, nothing in this
Agreement is intended to limit any earned, vested benefits (other than any
entitlement to severance pay) that Xx. X'Xxx may have under the applicable
provisions of any benefit plan in which Xx. X'Xxx is participating at the time
of her 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 Xx. X'Xxx'x at-will employment and the subject
matter of this 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 State of Texas without regard to its
conflict of laws principles.
THE NEIMAN MARCUS GROUP, INC.
/s/ Xxxxxx X'Xxx Xxxxx By: /s/ Xxxxxx X. Bangs
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Xxxxxx X'Xxx Xxxxx Xxxxxx A. Bangs, Senior Vice President
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 Neiman Marcus Group, Inc. (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 this
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.
