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THE NEIMAN MARCUS GROUP, INC. KEY EMPLOYEE DEFERRED COMPENSATION PLAN

Executive Compensation Plan Agreement

THE NEIMAN MARCUS GROUP, INC.

 

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Neiman Marcus Group, Inc

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Title: THE NEIMAN MARCUS GROUP, INC. KEY EMPLOYEE DEFERRED COMPENSATION PLAN
Date: 6/4/2008

THE NEIMAN MARCUS GROUP, INC.

 

KEY EMPLOYEE DEFERRED COMPENSATION PLAN, Parties: neiman marcus group  inc
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Exhibit 10.30

 

THE NEIMAN MARCUS GROUP, INC.

 

KEY EMPLOYEE DEFERRED COMPENSATION PLAN

 

(Amended and Restated Effective January 1, 2008)

 



 

TABL E OF CONTENTS

 

ARTICLE 1. INTRODUCTION

1

 

 

1.1

Purpose of Plan

1

1.2

Status of Plan

1

 

 

 

ARTICLE 2. DEFINITIONS

1

 

 

2.1

“Account”

1

2.2

“Affiliate”

1

2.3

“Base Pay”

1

2.4

“Bonus”

2

2.5

“Cause”

2

2.6

“Change in Control”

3

2.7

“Code”

5

2.8

“Committee”

5

2.9

“Company”

5

2.10

“Compensation”

5

2.11

“Effective Date”

5

2.12

“Elective Deferral”

5

2.13

“Eligible Employee”

5

2.14

“Employer”

6

2.15

“ERISA”

6

2.16

“Fiscal Year”

6

2.17

“Matching Deferral”

6

2.18

“Maximum 401(k) Plan Deferral”

6

2.19

“Maximum 401(k) Plan Match”

6

2.20

“Participant”

7

2.21

“Plan”

7

2.22

“Plan Year”

7

2.23

“Retirement”

7

2.24

“Retirement Savings Plan”

7

2.25

“Savings Plan”

7

2.26

“Separation from Service”

7

2.27

“Year of Service”

10

 

 

 

ARTICLE 3. PARTICIPATION

11

 

 

3.1

Commencement of Participation

11

3.2

Continued Participation

11

 

 

 

ARTICLE 4. DEFERRALS AND CREDITS

11

 

 

4.1

Elective Deferrals

11

4.2

Matching Deferrals

15

 

 

 

ARTICLE 5. ACCOUNTS; INTEREST; PAYMENT; VESTING

15

 

 

5.1

Accounts

15

 

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5.2

Interest

16

5.3

Payments

16

5.4

Vesting

16

 

 

 

ARTICLE 6. PAYMENTS

17

 

 

6.1

Election of Time and Form of Payment

17

6.2

Retirement and Other Separation from Service

19

6.3

Death

19

6.4

Change in Control

19

6.5

Hardship Distributions

20

6.6

Changes in Time and Form of Payment

21

6.7

Withholding

22

6.8

Specified Employees

22

6.9

409A Income Inclusion

22

 

 

 

ARTICLE 7. COMMITTEE

23

 

 

7.1

Plan Administration and Interpretation

23

7.2

Powers, Duties, Procedures, Etc.

23

7.3

Information

24

7.4

Indemnification of Committee

24

7.5

Claims Procedure

25

 

 

 

ARTICLE 8. AMENDMENT AND TERMINATION

26

 

 

8.1

Amendments

26

8.2

Termination of Plan

26

8.3

Existing Rights

26

 

 

 

ARTICLE 9. MISCELLANEOUS

27

 

 

9.1

No Funding; Source of Payments

27

9.2

Nonassignability; Domestic Relations Order

27

9.3

Limitation of Participants’ Rights

27

9.4

Participants Bound

28

9.5

Receipt and Release

28

9.6

Governing Law

28

9.7

No Guarantee of Tax Consequences

28

9.8

Adoption by Other Employers

29

9.9

Headings and Subheadings

29

 

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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

 

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(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.

 

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(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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