Exhibit 10.30
THE NEIMAN MARCUS GROUP, INC.
KEY EMPLOYEE DEFERRED COMPENSATION
PLAN
(Amended and Restated Effective January 1,
2008)
TABL E OF CONTENTS
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ARTICLE 1.
INTRODUCTION
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1
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1.1
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Purpose of
Plan
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1
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1.2
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Status of
Plan
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1
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ARTICLE 2.
DEFINITIONS
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1
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2.1
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“Account”
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1
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2.2
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“Affiliate”
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1
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2.3
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“Base
Pay”
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1
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2.4
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“Bonus”
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2
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2.5
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“Cause”
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2
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2.6
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“Change in
Control”
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3
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2.7
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“Code”
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5
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2.8
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“Committee”
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5
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2.9
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“Company”
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5
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2.10
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“Compensation”
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5
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2.11
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“Effective
Date”
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5
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2.12
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“Elective
Deferral”
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5
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2.13
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“Eligible
Employee”
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5
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2.14
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“Employer”
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6
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2.15
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“ERISA”
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6
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2.16
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“Fiscal
Year”
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6
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2.17
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“Matching
Deferral”
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6
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2.18
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“Maximum
401(k) Plan Deferral”
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6
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2.19
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“Maximum
401(k) Plan Match”
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6
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2.20
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“Participant”
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7
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2.21
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“Plan”
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7
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2.22
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“Plan
Year”
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7
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2.23
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“Retirement”
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7
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2.24
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“Retirement
Savings Plan”
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7
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2.25
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“Savings
Plan”
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7
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2.26
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“Separation from
Service”
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7
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2.27
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“Year of
Service”
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10
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ARTICLE 3.
PARTICIPATION
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11
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3.1
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Commencement of
Participation
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11
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3.2
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Continued
Participation
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11
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ARTICLE 4. DEFERRALS
AND CREDITS
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11
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4.1
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Elective
Deferrals
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11
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4.2
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Matching
Deferrals
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15
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ARTICLE 5. ACCOUNTS;
INTEREST; PAYMENT; VESTING
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15
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5.1
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Accounts
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15
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i
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5.2
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Interest
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16
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5.3
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Payments
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16
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5.4
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Vesting
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16
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ARTICLE 6.
PAYMENTS
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17
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6.1
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Election of Time and
Form of Payment
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17
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6.2
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Retirement and Other
Separation from Service
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19
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6.3
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Death
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19
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6.4
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Change in
Control
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19
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6.5
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Hardship
Distributions
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20
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6.6
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Changes in Time and
Form of Payment
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21
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6.7
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Withholding
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22
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6.8
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Specified
Employees
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22
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6.9
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409A Income
Inclusion
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22
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ARTICLE 7.
COMMITTEE
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23
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7.1
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Plan Administration and
Interpretation
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23
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7.2
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Powers, Duties,
Procedures, Etc.
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23
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7.3
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Information
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24
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7.4
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Indemnification of
Committee
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24
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7.5
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Claims
Procedure
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25
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ARTICLE 8. AMENDMENT
AND TERMINATION
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26
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8.1
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Amendments
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26
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8.2
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Termination of
Plan
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26
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8.3
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Existing
Rights
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26
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ARTICLE 9.
MISCELLANEOUS
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27
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9.1
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No Funding; Source of
Payments
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27
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9.2
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Nonassignability;
Domestic Relations Order
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27
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9.3
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Limitation of
Participants’ Rights
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27
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9.4
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Participants
Bound
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28
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9.5
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Receipt and
Release
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28
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9.6
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Governing
Law
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28
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9.7
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No Guarantee of Tax
Consequences
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28
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9.8
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Adoption by Other
Employers
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29
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9.9
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Headings and
Subheadings
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29
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ii
THE NEIMAN MARCUS GROUP, INC.
KEY EMPLOYEE DEFERRED COMPENSATION PLAN
(Amended and Restated Effective January 1,
2008)
ARTICLE 1. INTRODUCTION
1.1
Purpose of Plan . The Employers adopted The Neiman
Marcus Group, Inc. Key Employee Deferred Compensation Plan
(the “Plan”) effective January 1, 2006 as a
nonqualified deferred compensation arrangement to provide a means
by which certain eligible employees may defer Compensation.
The Plan is being amended and restated effective as of
January 1, 2008 to make changes designed to bring the Plan
into compliance with Code Section 409A and to make certain
other changes.
1.2
Status of Plan . The Plan is intended to be “a
plan which is unfunded and is maintained by an employer primarily
for the purpose of providing deferred compensation for a select
group of management or highly compensated employees” within
the meaning of Sections 201(2) and 301(a)(3) of ERISA and
is intended to comply with the requirements of Code
Section 409A, and shall be interpreted and administered in a
manner consistent with those intentions.
ARTICLE 2. DEFINITIONS
Wherever used herein, the following terms have
the meanings set forth below, unless a different meaning is clearly
required by the context:
2.1
“Account” means, for each Participant, the
account established for his or her benefit under
Section 5.1.
2.2
“Affiliate” means any corporation or
organization that together with an Employer is treated as a single
employer under Section 414(b) or (c) of the
Code.
2.3
“Base Pay” means the base salary payable by an
Employer to an employee, including amounts that would have been
payable to the employee as base salary but for an
election under
Section 125 of the Code, a deferral election under the Savings
Plan or the Retirement Savings Plan, or a deferral election under
this Plan.
2.4
“Bonus” means an annual cash bonus payable by an
Employer to an employee, including any portion of such a bonus that
would have been payable to the employee but for an election under
Section 125 of the Code, a deferral election under the Savings
Plan or the Retirement Savings Plan, or a deferral election under
this Plan, provided, however, that the Committee has designated
such amount as a “Bonus” eligible for an Elective
Deferral under this Plan prior to the deadline for making such
election. Notwithstanding the preceding sentence, the term
“Bonus” shall not include any amount arising from, or
paid under or in connection with a long-term incentive program, or
a stock appreciation right, stock option, restricted stock or stock
unit, or other equity-based incentive award, plan or
arrangement. A “ Fiscal Year Bonus ” means
any Bonus that satisfies the requirements to be fiscal year
compensation within the meaning of Treasury Regulation
Section 1.409A-2(a)(6). A “ Performance
Bonus ” means any Bonus that satisfies the requirements
to be performance-based compensation within the meaning of Treasury
Regulation Section 1.409A-1(e).
2.5
“Cause” means:
(a) the willful and continued failure by
the Participant to substantially perform duties consistent with the
Participant’s position with the Employer (other than any such
failure resulting from incapacity due to physical or mental
illness), after a demand for substantial performance is delivered
to the Participant, and the Participant has failed to resume
substantial performance of his or her duties on a continuous basis
within 14 days of receiving such demand;
(b)
the willful engaging by the Participant in conduct that is
demonstrably and materially injurious to an Employer, monetarily or
otherwise; or
2
(c)
the Participant’s commission of a felony, commission of a
misdemeanor involving assets of an Employer, or violation of an
Employer’s merchandise discount policy.
For purposes
of this definition, no act, or failure to act, on the
Participant’s part shall be deemed “willful”
unless done, or omitted to be done, by the Participant not in good
faith and without reasonable belief that his or her action or
omission was in the best interest of the Employer.
2.6
“Change in Control” shall be deemed to have
taken place for purposes of the Plan upon the occurrence of any of
the following events after the Effective Date: (i) any sale,
lease, exchange or other transfer (in one transaction or a series
of related transactions) of all or substantially all of the assets
of the Company on a consolidated basis to any Person or group of
related persons for purposes of Section 13(d) of the
Securities Exchange Act of 1934 (a “Group”), together
with any CIC Affiliates thereof other than to a Majority
Stockholder; (ii) the approval by the holders of the
outstanding voting power of the Company of any plan or proposal for
the liquidation or dissolution of the Company;
(iii) (A) any Person or Group (other than the Majority
Stockholder) shall become the beneficial owner (within the meaning
of Section 13(d) of the Exchange Act), directly or
indirectly, of Common Stock representing more than 40% of the
aggregate outstanding voting power of the Company and such Person
or Group actually has the power to vote such Common Stock in any
such election and (B) the Majority Stockholder beneficially
owns (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934), directly or indirectly, in the
aggregate a lesser percentage of the voting power of the Company
than such other Person or Group; (iv) the replacement of a
majority of the Board of Directors of the Company over a two-year
period from the directors who constituted the Board of Directors of
the Company at the beginning of such period, and such replacement
shall not have been approved by a vote of at least a majority of
the Board of Directors of the Company then still in
3
office who
either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of
Directors was previously so approved or who were nominated by, or
designees of, a Majority Stockholder; or (v) consummation of a
merger or consolidation of the Company with another entity in which
holders of the Common Stock of the Company immediately prior to the
consummation of the transaction hold, directly or indirectly,
immediately following the consummation of the transaction, less
than 50% of the common equity interest in the surviving corporation
in such transaction and the Majority Stockholder does not hold a
sufficient amount of voting power (or similar securities) to elect
a majority of the surviving entity’s board of
directors.
For
purposes of this Section 2.6 only, the following terms shall
have the following meanings:
(a)
“ CIC Affiliate ” shall mean, 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.
(b)
“ Common Stock ” shall mean the common stock of
the Company, $0.01 par value per share.
(c)
“ Company ” shall mean Neiman Marcus, Inc.
or The Neiman Marcus Group, Inc.
(d)
“ Majority Stockholder ” shall mean,
collectively or individually as the context requires ,
Newton Holding, LLC, TPG Newton III, LLC, TPG Partners IV, L.P.,
TPG Newton Co-Invest I, LLC, Warburg Pincus Private Equity VIII,
L.P., Warburg Pincus Netherlands Private Equity VIII C.V. I,
Warburg Pincus Germany Private Equity VIII K.G , Warburg Pincus
Private Equity IX, L.P and/or their respective CIC Affiliates.
4
(e)
“ Person ” shall mean an individual,
partnership, corporation, limited liability company, unincorporated
organization, trust or joint venture, or a governmental agency or
political subdivision thereof.
2.7
“Code” means the Internal Revenue Code of 1986,
as amended from time to time. Reference to any section or
subsection of the Code includes reference to any comparable or
succeeding provisions of any legislation which amends, supplements
or replaces such section or subsection. Similarly, reference
to any Treasury Regulation includes reference to any succeeding
provisions of any regulation or other applicable guidance that
amends, supplements or replaces such regulation.
2.8
“Committee” means The Neiman Marcus
Group, Inc. Employee Benefits Committee or any successor
committee appointed by the Board of Directors of The Neiman Marcus
Group, Inc. or its delegate.
2.9
“Company” means The Neiman Marcus
Group, Inc., a Delaware corporation, and any successor,
including a successor to all or substantially all of the
Company’s assets or business which assumes the obligations of
the Company with regard to the Plan.
2.10
“Compensation” means Base Pay and any Bonus
payable by an Employer to an employee.
2.11
“Effective Date” means January 1,
2006.
2.12
“Elective Deferral” means the portion of
Compensation which is deferred by a Participant under
Section 4.1.
2.13
“Eligible Employee”
means
each employee of an Employer who was eligible to participate in the
Plan as of January 1, 2007. No other persons shall
become Eligible Employees and in the event of an Eligible
Employee’s Separation from Service after January 1,
2007, such Eligible Employee shall not again become an Eligible
Employee hereunder. The Committee in
5
its
discretion may withdraw an employee’s status as an Eligible
Employee at any time and for any reason effective with respect to
any subsequent Plan Year.
2.14
“Employer” means the Company and any Affiliate
that adopts the Plan with the consent of the Company as provided in
Section 9.8.
2.15
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time. Reference
to any section or subsection of ERISA includes reference to any
comparable or succeeding provisions of any legislation which
amends, supplements or replaces such section or
subsection.
2.16
“Fiscal Year” means the fiscal year of the
Company.
2.17
“Matching Deferral” means a deferral made for
the benefit of a Participant under Section 4.2.
2.18
“Maximum 401(k) Plan Deferral” means a
Participant’s maximum permissible elective deferral under the
Savings Plan or the Retirement Savings Plan, as applicable, at the
time in question assuming the maximum permissible elective
deferrals have been made under the Savings Plan or Retirement
Savings Plan, as applicable, for prior periods during such Plan
Year, regardless of whether the Participant actually made any such
elective deferrals. The determination of whether the Savings
Plan or the Retirement Savings Plan is applicable to a Participant
for this purpose for a particular Plan Year shall be by reference
to the plan in which the Participant is eligible to participate as
of the beginning of said Plan Year.
2.19
“Maximum 401(k) Plan Match” means a
Participant’s maximum permissible matching contribution under
the Savings Plan or the Retirement Savings Plan, as applicable, at
the time in question and assuming the maximum permissible elective
deferrals have been made under the Savings Plan or the Retirement
Savings Plan, as applicable, for prior periods during such Plan
Year, regardless of whether the Participant actually made any such
elective deferrals.
6
The
determination of whether the Savings Plan or the Retirement Savings
Plan is applicable to a Participant for this purpose shall be by
reference to the plan in which the Participant is eligible to
participate as of the beginning of said Plan Year.
2.20
“Participant” means any individual who
participates in the Plan in accordance with
Article 3.
2.21
“Plan” means The Neiman Marcus Group, Inc.
Key Employee Deferred Compensation Plan, originally effective as of
January 1, 2006, as from time to time in effect and including
all amendments hereto.
2.22
“Plan Year” means the calendar year.
2.23
“Retirement” means Separation from Service on or
after the date the Participant has attained age 55 and reached the
fifth anniversary of the date he or she first performed an hour of
service (as defined in Section 2.27 below).
2.24
“Retirement Savings Plan” means The Neiman
Marcus Group, Inc. Retirement Savings Plan, as amended from
time to time.
2.25
“Savings Plan” means The Neiman Marcus
Group, Inc. Employee Savings Plan, as amended from time to
time.
2.26
“Separation from Service” means the termination
of services provided by a Participant to his or her Employer (as
defined in (c) below), whether voluntary or involuntary, as
determined by the Committee in accordance with Treasury Regulation
Section 1.409A-1(h). In determining whether a
Participant has experienced a Separation from Service, the
following provisions shall apply:
(a)
Except as otherwise provided in subsection (b) below, a
Separation from Service will occur when such Participant has
experienced a termination of employment
7
with the
Employer. A Participant will be considered to have
experienced a termination of employment when the facts and
circumstances indicate that the Participant and his or her Employer
reasonably anticipate that either (A) no further services will
be performed for the Employer after a certain date, or
(B) that the level of bona fide services the Participant will
perform for the Employer after such date (whether as an employee or
as an independent contractor) will permanently decrease to no more
than 20% of the average level of bona fide services performed by
the Participant (whether as an employee or an independent
contractor) over the immediately preceding 36-month period (or the
full period of services to the Employer if the Participant has been
providing services to the Employer less than 36 months).
If
a Participant is on military leave, sick leave, or other bona fide
leave of absence, the employment relationship between the
Participant and the Employer will be treated as continuing,
provided that the period of the leave of absence does not exceed
six months, or if longer, so long as the Participant has a right to
reemployment with the Employer under an applicable statute or by
contract. If the period of a military leave, sick leave, or
other bona fide leave of absence exceeds six months and the
Participant does not have a right to reemployment under an
applicable statute or by contract, the employment relationship will
be considered to be terminated for purposes of this Plan as of the
first day immediately following the end of such six-month period.
In applying the provisions of this paragraph, a leave of
absence will be considered a bona fide leave of absence only if
there is a reasonable expectation that the Participant will return
to perform services for the Employer.
8
(b)
For a Participant who
provides services to an Employer as both an employee and an
independent contractor , a Separation from Service generally
will not occur until the Participant has ceased providing services
for the Employer as both an employee and an independent
contractor. Except as otherwise provided herein, in the case
of an independent contractor a Separation from Service will occur
upon the expiration of the contract (or in the case of more than
one contract, all contracts) under which services are performed for
the Employer, provided that the expiration of such contract or
contracts is determined by the Employer to constitute a good-faith
and complete termination of the contractual relationship between
the Participant and the Employer. If a Participant ceases
providing services for an Employer as an employee and begins
providing services for such Employer as an independent contractor,
the Participant will not be considered to have experienced a
Separation from Service until the Participant has ceased providing
services for the Employer in both capacities, as determined in
accordance with the applicable provisions set forth in subsections
(a) and (b) of this Section.
Notwithstanding
the foregoing provisions in this subsection, if a Participant
provides services for an Employer as both an employee and as a
member of the board of directors of an Employer, to the extent
permitted by Treasury Regulation
Section 1.409A-1(h)(5), the services provided by the
Participant as a director will not be taken into account in
determining whether the Participant has experienced a Separation
from Service as an employee
9
(c)
For purposes of this
Section only, “ Employer ”
means:
(i)
The entity for whom the
Participant performs services and with respect to which the legally
binding right to the payment of benefits under this Plan arises;
and
(ii)
All other entities with
which the entity described in (i) above would be aggregated
and treated as a single employer under Code
Section 414(b) (controlled group of corporations) and
Code Section 414(c) (group of trades or businesses under
common control), as applicable; provided, however, that an
ownership threshold of 50% shall be used as a substitute for the
80% minimum ownership threshold that appears in, and otherwise must
be used when applying, the applicable provisions of (1) Code
Section 1563 and the regulations thereunder for determining a
controlled group of corporations under Code Section 414(b),
and (2) Treasury Regulation Section 1.414(c)-2 for
determining the trades or businesses that are under common control
under Code Section 414(c).
2.27
“Year of
Service” means completion of the twelve consecutive
month period beginning on the date the employee first performs an
hour of service upon initial employment with an Employer or an
Affiliate during which the employee is continuously employed by an
Employer or an Affiliate or, with respect to an employee who
terminates employment prior to completing a Year of Service,
completion of the twelve consecutive month period beginning on the
date the employee first performs an hour of service upon
reemployment with an Employer or an Affiliate during which the
employee is continuously employed by an Employer or an Affiliate.
For this purpose and for purposes of Section 2.23
defining the term “Retirement”, an “ hour of
service ” shall mean each hour for which an employee is
paid or entitled to payment for the performance of duties for an
Employer or an Affiliate.
10
ARTICLE 3. PARTICIPATION
3.1
Commencement of
Participation . An Eligible Employee shall become a
Participant on the effective date of an election to defer
Compensation in accordance with Section 4.1.
3.2
Continued
Participation . An individual who has become a
Participant in the Plan shall continue to be a Participant so long
as any amount remains credited to his or her Account.
ARTICLE 4. DEFERRALS AND
CREDITS
4.1
Elective
Deferrals .
(a)
Base Pay
. An individual who
is or will be an Eligible Employee as of any January 1 may
elect to defer a designated whole percentage, not to exceed 15
percent, of all Base Pay that is payable to the individual for
services to be performed on or after that date by filing an
election with the Committee prior to that January 1 (or such
earlier date as the Committee may prescribe). Any such
election shall be irrevocable as of the December 31
immediately prior to such January 1 (or such earlier date as
the Committee may prescribe). Notwithstanding the preceding
provisions of this paragraph, a Participant may revoke or otherwise
modify an existing election, or make a new deferral election,
effective as of any January 1 subsequent to the date of such
revocation, modified election, or new election, but only with
respect to Base Pay earned thereafter. Such revocation,
modification or new election must be delivered to the Committee no
later than the December 31 immediately preceding the effective
date of the election (or such earlier date as the Committee may
prescribe). The same deferral percentage shall apply to each
payment of Base Pay covered by the election.
11
(b)
Bonuses
. An individual who
is an Eligible Employee may elect to defer a designated whole
percentage, not to exceed 15 percent, of a Bonus payable to the
individual with respect to a Fiscal Year beginning in a calendar
year after the calendar year in which the election is made, by
filing an irrevocable election with the Committ
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