Neiman Marcus 2011 Annual Report Download - page 157

Reg. § 1.409A-1(b)(5)(iv), of the shares of common stock or other equity interests underlying such Eligible Assumed Options, minus the aggregate exercise
price of such Eligible Assumed Options that such Participant would have been required to pay in order to exercise such Eligible Assumed Options.
8. Construction of Agreement. Any provision of this Agreement (or portion thereof) which is deemed invalid, illegal or unenforceable in
any jurisdiction shall, as to that jurisdiction and subject to this section, be ineffective to the extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions thereof in such jurisdiction or rendering that or any other provisions of this Agreement invalid, illegal, or
unenforceable in any other jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such
covenant shall be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and
enforceable. No waiver of any provision or violation of this Agreement by the Company shall be implied by the Company’s forbearance or failure to take
action. It is intended that the Option be exempt from Code Section 409A, and this Agreement shall be administered and construed to the fullest extent possible
to reflect and implement such intent.
9. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or
default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of, or
acquiescence in, any such breach or default, or any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part
of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be
in writing and shall be effective only to the extent specifically set forth in such writing.
10. Limitation on Transfer. The Option shall be exercisable only by the Participant or the Participant’s Permitted Transferee(s), as
determined in accordance with the terms of the Plan (including without limitation the requirement that the Participant obtain the prior written approval by the
Board of any proposed Transfer to a Permitted Transferee during the lifetime of the Participant). Each Permitted Transferee shall be subject to all the
restrictions, obligations, and responsibilities as apply to the Participant under the Plan and this Agreement and shall be entitled to all the rights of the
Participant under the Plan, provided that in respect of any Permitted Transferee which is a trust or custodianship, the Option shall become exercisable and/or
expire based on the employment and termination of employment of the Participant. All shares of Common Stock obtained pursuant to the Option granted
herein shall not be transferred except as provided in the Plan and, where applicable, the Management Stockholders’ Agreement.
11. Integration. This Agreement, and the other documents referred to herein or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants
or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Plan. This Agreement, including without
limitation the Plan, supersedes all prior agreements and understandings between the parties with respect to its subject matter.
12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
13. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of
Delaware without regard to the provisions governing conflict of laws.
14. Participant Acknowledgment . The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby
acknowledges that all decisions, determinations and interpretations of the Board in respect of the Plan, this Agreement, the Amendment Letter and the Option
shall be final and conclusive. The Participant further acknowledges that, prior to the existence of a Public Market, no exercise of the Option or any portion
thereof shall be effective unless and until the Participant has executed the
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