EXHIBIT 10.37
AMENDMENT TO THE
MANAGEMENT STOCKHOLDERS’
AGREEMENT
This Amendment to the Management
Stockholders’ Agreement (the “Amendment”) is made
effective as of January 1, 2009, by and between Neiman
Marcus, Inc., a Delaware corporation (formerly known as Newton
Acquisition, Inc.) (the “Company”), the Majority
Stockholders (as listed on Schedule A) and the Management
Stockholders (as listed on Schedule B).
W I T N E S
S E T H :
WHEREAS, the Company, the Majority
Stockholder and the Management Stockholder entered into the
Management Stockholders’ Agreement (the
“Agreement”) effective as of October 6, 2005;
and
WHEREAS, the Company, the Majority
Stockholder and the Management Stockholder now desire to amend the
Agreement for compliance with Internal Revenue Code
Section 409A and the Treasury Regulations thereunder, and to
make certain other changes;
NOW, THEREFORE, pursuant to the
authority reserved in Section 9, the Agreement is amended as
follows:
1.
The Agreement is hereby amended such
that the term “Company” shall mean Neiman
Marcus, Inc.
2.
Section 1(j) of the
Agreement is hereby amended and restated in its entirety as
follows:
(j)
“ Fair Market Value ” shall mean, as of any
date:
i.
for Common Stock not readily tradable on an established securities
market (as determined in accordance with Treas. Reg. §§
1.409A-1(b)(5)(vi)(G) and 1.409A-1(k)), the value per share of
Common Stock as determined in good faith by the Board and based
upon the reasonable application of a reasonable valuation method in
accordance with Treas. Reg. § 1.409A-1(b)(5)(iv)(B);
or
ii.
for Common Stock readily tradable on an established securities
market (as determined in accordance with Treas. Reg. §§
1.409A-1(b)(5)(vi)(G) and 1.409A-1(k)), (i) the closing
price on such day of a share of Common Stock as reported on the
principal securities exchange on which shares of Common Stock are
then listed or admitted to trading or (ii) if not so reported,
the average of the closing bid and ask prices on such day as
reported on the National Association of Securities Dealers
Automated Quotation System or (iii) if not so reported, as
furnished by any member of the National Association of Securities
Dealers, Inc. (“ NASD ”) selected by the
Board. The Fair Market Value of a share of Common Stock as of
any such date on which the applicable exchange or inter-dealer
quotation system through which trading in the Common Stock
regularly occurs is closed shall be the Fair Market Value
determined pursuant to the preceding sentence as of
