Neiman Marcus 2004 Annual Report Download - page 143

27 Boylston Street
Chestnut Hill, Massachusetts 02467
Telecopy: 617-278-5567
with a copy to:
Choate Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
Telecopy: 617-248-4000
Attn: Andrew L. Nichols, Esq.
SECTION 5.6 Waivers. The failure of any party to require strict performance by any other party of any provision in this Agreement will not waive or
diminish that party's right to demand strict performance thereafter of that or any other provision hereof.
SECTION 5.7 Amendments. Subject to the terms of Section 5.10 hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 5.8 Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior
written consent of the other party hereto, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void.
SECTION 5.9 Successors and Assigns. The provisions to this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns. In addition, the provisions of this Agreement shall be binding upon any person that acquires, directly or
indirectly, 50% or more of the (i) voting power, in an election of directors or otherwise, represented by the outstanding common stock, (ii) shares of
outstanding common stock or (iii) assets of Neiman Marcus on or after the Distribution Date, but Neiman Marcus shall not enter into any agreement with
respect to the foregoing or permit to be consummated any such transaction unless and until a writing shall be signed by any such person and delivered to
Harcourt General whereby such person agrees to assume the obligations of Neiman Marcus hereunder.
SECTION 5.10 Termination. This Agreement (including Article III hereof) may be terminated and the Distribution may be amended, modified or
abandoned at any time prior to the filing of the certificate of merger relating to the Recapitalization by and in the sole discretion of Harcourt General without
the approval of Neiman Marcus or the stockholders of Neiman Marcus; provided that if, at the time of such termination Neiman Marcus is not in breach of
any of its obligations hereunder or under the Recapitalization Agreement, Harcourt General shall pay the reasonable out-of-pocket expenses of Neiman
Marcus incurred in connection with this Agreement, the Recapitalization Agreement and the transactions contemplated hereby and thereby. This Agreement
may be terminated by Neiman Marcus only upon material breach by Harcourt General of a representation, warranty or covenant contained in this Agreement,
which breach would result in a Material Adverse Effect with respect to Neiman Marcus after giving effect to the Distribution. In the event of termination of
this Agreement by either party hereto, except as set forth in the next preceding sentence, no party shall have any liability of any kind to any other party or any
other person. After the filing of the certificate of merger relating to the Recapitalization, this Agreement may not be terminated except by an agreement in
writing signed by both parties and a majority of the Independent Directors of Neiman Marcus.
SECTION 5.11 Subsidiaries. Each of the parties hereto shall cause to be performed, and hereby guarantees the performance of, all actions, agreements
and obligations set forth herein to be performed by any Subsidiary of such party or by any entity that is contemplated to be a Subsidiary of such party on or
after the Distribution Date.
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