Neiman Marcus 2009 Annual Report Download - page 342

five (5) days, the dispute shall not be considered an Unapproved Matter.
(C) Appointment of Representatives. If, after a period of five (5) Business Days, the
Management Committee is unable to resolve the dispute to the satisfaction of both the
NMG Companies and Bank, each Party shall appoint a designated knowledgeable,
responsible representative who is one of the top five highest executives in the Credit Card
division of Bank and one of the top five executives of NMG and who does not devote
substantially all of his or her time to performance under this Agreement, whose task it
will be to meet for the purpose of negotiating in good faith to seek resolution of the
dispute.
With respect to clauses (A), (B) and (C) above, discussions, documents and correspondence exchanged among the Managers
and representatives, or submitted to the Management Committee for purposes of these negotiations, shall be treated as
Confidential Information developed for purposes of settlement, exempt from discovery and production, which shall not be
admissible in any lawsuit without the concurrence of the Parties. Documents identified in or provided with such
communications, which were not prepared for the purposes of the negotiations, are not so exempted and may, if otherwise
admissible, be admitted in evidence in any lawsuit.
(ii) Formal proceedings for the resolution of the dispute shall not be commenced until the earlier of:
(A) either of the designated representatives concludes in good faith that amicable resolution
through continued negotiation of the dispute does not appear likely and so states in a
notice to the other designated representative or in a joint declaration signed by each of
them; or
(B) twenty (20) Business Days after the appointment of designated representatives pursuant
to Section 12.4(b)(i)(C) above (it being understood that this period shall be deemed to run
notwithstanding any claim that the process described in this Section 12.4 was not
followed or completed).
(iii) This Section 12.4 shall not be construed to prevent a Party from instituting, and a Party is
authorized to institute, formal proceedings earlier than provided in clause (ii) above, to avoid the expiration
of any applicable limitations period or to preserve a superior position with respect to other creditors.
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