Exhibit 10.6


 


Execution
Copy


 


Newton Acquisition, Inc.


 


September 30, 2005


 


Re:  Opportunity to Acquire Shares


 


Dear Neiman Marcus
Executive,


 


As you know, The Neiman Marcus Group, Inc. (“NMG”)
is in the process of undergoing a change of control, and following the change
of control, 100% of its outstanding shares will be owned by an entity called
Newton Acquisition, Inc. (“Newco”). 
This transaction is pursuant to an Agreement and Plan of Merger, dated
as of May 1, 2005, by and among Newco, Newton Acquisition Merger Sub, Inc.
and NMG (the “Merger Agreement”). 
Although a delay is possible, we expect that the closing of the
transaction will occur on October 6, 2005 (the “Closing”).


 


We are
pleased to offer you the opportunity to invest in shares of common stock of
Newco (the “Shares”) on the terms and conditions set out below.  As further described below, to the extent
that you own shares of NMG as a capital asset, you are being given the
opportunity to invest on a tax-deferred basis by “rolling over” a portion of
these shares (any such shares being rolled over, the “Rollover Shares”).  In addition, you are being offered the
opportunity to make a cash contribution as set forth in Section 3 and the
Acceptance Form (your “Cash Contribution”).


 


1.             Merger
Consideration; Rollover Shares.  As a
result of the transactions contemplated by the Merger Agreement, absent an
election to contribute or “rollover” the Rollover Shares as contemplated in
this agreement (this “Agreement”), you would be entitled, with respect
to your Rollover Shares, to the “Merger Consideration” (as defined in the
Merger Agreement) for each such Rollover Share (the aggregate such amount that
you would be entitled to receive with respect to your Rollover Shares, the “Rollover
Merger Consideration”).  As a
technical matter, the Rollover Merger Consideration that is payable to you in
the absence of a rollover election would be distributed by NMG.  By completing the Acceptance Form below,
you agree to, and instruct Newco and NMG to use their reasonable efforts to,
roll over your Rollover Shares into the Shares in lieu of receiving the
Rollover Merger Consideration in cash. 
Upon your instruction, this rollover will occur as set forth below in “Sale
and Purchase of Shares; Rollover Mechanics”, and will ultimately result in your
Rollover Shares being contributed to Newco in exchange for the Shares.


 


2.             Sale
and Purchase of Shares; Rollover Mechanics. 
By completing and returning the Acceptance Form below, you agree
to, immediately prior to the Closing, contribute your Rollover Shares to Newco
and agree to forego any Rollover Merger Consideration (and any Merger
Consideration you are using to satisfy your Cash Contribution) to which you
would otherwise have been entitled absent an election to invest in the Shares.  The Rollover Shares so contributed will be
canceled and retired without any conversion thereof or payment or


 

















 


distribution thereon, as
set forth in Section 2.1(b) of the Merger Agreement. In exchange for
the Rollover Shares and your Cash Contribution, you will receive such number of
Shares having an aggregate value equal to the amount of your investment as
indicated on the Acceptance Form.  You
will be the holder of record of the Shares as of the Closing, whether or not
Newco issues physical certificates to you. 
This offer is conditioned upon the occurrence of the Closing.  If the Closing does not occur, this Agreement
will be canceled and will be of no force and effect.


 


3.             Form of
Consideration.  If you choose to
invest in the Shares, (i) you must invest a minimum of $50,000, and (ii) you
must first satisfy your investment of the Rollover Shares by contributing all
NMG shares that you purchased from NMG on October 29, 2004 under the NMG
1997 Stock Incentive Plan for $60.83 (the “10/29 Rollover Shares”), if
you hold any such shares.  Thereafter,
any additional investment of the Rollover Shares may be satisfied by rolling
over other NMG shares that you hold as a capital asset (e.g., shares you
acquired on the market or shares you acquired by exercising stock options, but
not including restricted stock or stock units), if any, or by making your Cash
Contribution.  Your Cash Contribution
will automatically be deducted from your after-tax merger proceeds (e.g., from
any cash payment of the Merger Consideration to which you may be entitled with
respect to equity or equity-based interests other than those being rolled over
pursuant to this Agreement), provided that if such proceeds are insufficient,
any shortfall must be received by wire transfer by the close of business on the
day before the Closing (wire information will be provided to you).   With respect to the 10/29 Rollover Shares,
you hereby authorize NMG to take such action as may be necessary to cause these
shares to be rolled over.  Delivery of any
other Rollover Shares will occur as follows: (x) with respect to Rollover
Shares for which physical certificates were delivered to you, by delivering the
physical certificates that were so issued; and (y) with respect to Rollover
Shares you hold through a brokerage account, by having the brokerage firm by
which such Rollover Shares are held transfer these Rollover Shares to an
account established in Newco’s name (the “Newco Account”) (transfer
information will be provided to you).  The Rollover Shares must be credited to the Newco
Account before 12:00 p.m., Wednesday, October 5, 2005,
which means that you should instruct your broker to initiate the transfer by
12:00 p.m. on Tuesday, October 5, 2005.


 


4.             Acceptance
and Closing; Conditions.  You may
accept this offer and the terms of this Agreement by completing and returning
the Acceptance Form below, in which case the closing of the acquisition of
the Shares will occur immediately after the Closing.  This offer is conditioned upon the occurrence
of the Closing.  If the Closing does not
occur on or before October 17, 2005 (the “Closing Deadline”), this
Agreement will be canceled and you will have no rights with respect hereto and
any Rollover Shares that you have transferred or cash payment that you have
made pursuant to Section 3 will be returned to you; provided, that
if Newco determines on or before the Closing Deadline and in good faith that
the Closing is likely to occur on or before October 31, 2005, the Closing
Deadline shall automatically be extended to October 31, 2005.


 


5.             Limitation.  Newco, in its discretion, may limit the
number of Shares that you may purchase, and therefore may choose not to accept
the full amount of your investment election. 
Rollover Shares not so accepted pursuant to the preceding sentence will
be treated in accordance with the provisions of the Merger Agreement.


 


2

















 


6.             Vesting.  Your Shares when issued will be fully vested.


 


7.             Stockholders’
Agreement.  By completing and returning
the Acceptance Form below, you agree to become a party to the Management
Stockholders’ Agreement, a draft of which is attached hereto as Annex A, as may
be amended from time to time in accordance with its terms (the “Stockholders’
Agreement”) and you will be subject to the terms and conditions thereof
with respect to your Shares; provided that the Shares shall not be
subject to the call right in Section 3(b). 
Newco agrees that it will, and that it will cause the Majority Holders
(as defined below) to, also become a party to the Stockholders’ Agreement.


 


8.             Tax
Reporting.  It is intended that your
contribution of the Rollover Shares, if any, shall be treated as a tax-free
transfer under Section 351 of the Internal Revenue Code of 1986, as
amended (the “Code”).


 


All discussions of U.S. federal tax
considerations in this document have been written to support the marketing of
the Shares.  Such discussions were not
intended or written to be used, and cannot be used by any taxpayer, for the
purpose of avoiding U.S. federal tax penalties. 
You should consult your own tax advisers in determining the tax
consequences of the rollover and of holding the Shares, including the
application to your particular situation of the U.S. federal tax considerations
discussed herein, as well as the application of state, local, foreign, or other
tax laws.


 


9.             Representations;
Acknowledgements.  By signing below and completing and returning
the Acceptance Form, you hereby represent and warrant to Newco and NMG that:


 


(i)            you have the requisite power, authority and
capacity to execute this Agreement and to deliver or cause to be delivered the
Rollover Shares, to perform your obligations under this Agreement and to
consummate the transactions contemplated hereby;


 


(ii)           the Acceptance Form has been duly and
validly executed and delivered by you and constitutes your legal, valid and
binding obligation, enforceable against you in accordance with its terms,
except to the extent that such validly binding effect and enforceability may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium and
other laws relating to or affecting creditors’ rights generally;


 


(iii)          the Shares are being acquired for your own
account, for investment purposes only and not with a view to or in connection
with any distribution, reoffer, resale, public offering or other disposition
thereof not in compliance with the Securities Act of 1933 (the “Securities
Act”), as may be amended from time to time, or any applicable United States
federal or state securities laws or regulations;


 


(iv)          you are an “accredited investor”, as defined
in Rule 501(a) under the Securities Act, which means you are:


 


a.     A person whose individual net worth, or joint
net worth with your spouse, exceeds $1,000,000;         OR


 


3

















 


b.     A person whose income exceeded $200,000 in
each of the two most recent years, or joint income with your spouse exceeded
$300,000 in each of those years, and you have a reasonable expectation of
reaching the same income level in this year;


 


(v)           you possess such expertise, knowledge, and
sophistication in financial and business matters generally, and in the type of
transaction in which NMG and Newco propose to engage in particular;


 


(vi)          you have had access to all of the information
and individuals with respect to the Shares and your investment that you deem
necessary to make a complete evaluation thereof;


 


(vii)         you have had an opportunity to consult an
independent tax and legal advisor and your decision to acquire the interest for
investment has been based solely upon your evaluation;


 


(viii)        you are aware that the Internal Revenue
Service or other relevant taxing authority may take a position regarding the
rollover contemplated in this Agreement and/or the tax classification of Newco
and the Shares contrary to that intended by Newco as provided in this Agreement
and you shall be solely responsible for any and all tax or other liabilities
that may result from the IRS’s or other relevant taxing authority’s position; and


 


(ix)           you are aware that the Stockholders’
Agreement provides significant restrictions on your ability to dispose of the
Shares.


 


By electing to contribute the Rollover Shares pursuant to
this Agreement, you acknowledge that you are instructing Newco and its
affiliates to distribute to you, following the Closing, Shares in Newco instead
of cash, as described above, and you hereby acknowledge that you do not have,
and will not assert that you have, any claim against Newco, the Majority
Holders (as defined below) or their respective affiliates to receive the Merger
Consideration or any other payment in exchange for the Rollover Shares, except
as contemplated herein.  You further
acknowledge that any tax bonus to make up for the differential between short-term
and long-term capital gains rates that otherwise would be paid to you will not
be so paid on the 10/29 Rollover Shares.


 


The “Majority Holders”
shall mean, collectively or individually, TPG Partners
III, L.P., TPG Partners IV, L.P., Warburg Pincus Private Equity VIII,
L.P., Warburg Pincus Netherlands
Private Equity VIII I, C.V. and Warburg Pincus Germany Private Equity VIII K.G and their respective successors and assigns.


 


10.           Other
NMG Interests.  You acknowledge that
any other equity or equity-based interests that you hold in NMG that you do not
elect to roll over, or which are not accepted for rollover for any reason
pursuant to this Agreement, will be treated in accordance with the Merger
Agreement.


 


11.           Governing
Law.  All questions concerning the construction,
validity and interpretation of this Agreement will be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
any choice of law or conflict of law provision or rule that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.


 


4

















 


12.           Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.


 


*              *              *              *              *


 


[Signature Page Follows]


 


5

















 


Please
sign your name on the space provided below and please indicate whether and how
you would like to invest in Newco by completing and executing the Acceptance Form attached
to the end of this Agreement.  Please
return an executed copy of this Agreement and the Acceptance Form in
original form or by  FAX no later than 1:00 p.m.
(Central Daylight Time) on Monday, October 3, 2005 to the attention of
Marita O’Dea, The Neiman Marcus Group,
1618 Main Street Dallas, TX 75201. The fax number
is 214-743-7605.  (If you fax your
election form on Monday, the original should be delivered to Marita O’Dea no
later than Wednesday, October 5, 2005).


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Newton
  Acquisition, Inc.

  
	
   

  	
  By:

  	
  David Spuria

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
  Agreed to and
  Accepted by:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature

  	
   

  
	
   

  	
   

  
	
  Please print
  your name and address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By execution
  below, NMG and its respective affiliates agree, if so directed by you, to use
  reasonable efforts to effect a rollover pursuant to this Agreement as a
  tax-free distribution under section 351 of the Code, unless otherwise
  required pursuant to a final determination, as defined in Section 1313
  of the Code:

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  
	
   for The
  Neiman Marcus Group, Inc.

  
	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
												



 


S-1
















 


Acceptance
of Offer to Acquire Shares of Newco (the “Acceptance Form”)


 


Pursuant to the terms and
conditions set forth in letter to me dated September 30, 2005, I,                                             ,
hereby elect make an investment in Newco and purchase Shares in the amount and
manner below:


 


1.  $                        ,
which will be satisfied through a contribution of                 
NMG shares (at $100 per share).


 


2.  $                        ,
which will be satisfied through a reduction in my after-tax proceeds from any
cash payment of the Merger Consideration I will receive in exchange equity or
equity-based interests other than those being rolled over pursuant to this
Agreement.


 


3.  $                        ,
which will be satisfied by wire transfer (wire instructions to be supplied).


 


Aggregate Investment = $                      
(sum of 1, 2 and 3 above cannot be less than $50,000)


 


	
   

  	
   

  
	
  Signature

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date

  	
   

  



 


F-1

















 


ANNEX
A


 


[STOCKHOLDERS’
AGREEMENT]


 


A-1
















 


MANAGEMENT STOCKHOLDERS’ AGREEMENT


 


MANAGEMENT STOCKHOLDERS’
AGREEMENT (this “Agreement”), dated as of October 6, 2005, between
Newton Acquisition, Inc. (the “Company”), the Majority Stockholder
(as defined below) and the individuals listed on Schedule A attached hereto
(the “Management Stockholder”).


 


WHEREAS, the Management Stockholder may be the owner
of shares of common stock of the Company, $0.01 par value per share (“Common
Stock”) and/or may be granted options to purchase Common Stock (the “Options”),
pursuant to The Newton Acquisition, Inc. Management Equity Incentive Plan
(the “Plan”); and


 


WHEREAS, as a condition to the issuance of any shares
of Common Stock by the Company to the Management Stockholder, the Management
Stockholder is required to execute this Agreement; and


 


WHEREAS, the Management Stockholder, the Majority
Stockholder and the Company desire to enter into this Agreement and to have
this Agreement apply to any shares of Common Stock acquired by the Management
Stockholder from whatever source (in the aggregate, the “Shares”);


 


NOW THEREFORE, in consideration of the premises
hereinafter set forth, and other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto agree as follows.


 


1.             Definitions.  As used in this Agreement, the following
capitalized terms shall have the following meanings:


 


(a)           “Affiliate” shall means, 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)           “Board”
shall mean the Board of Directors of the Company or any committee appointed by
the Board to administer the Plan pursuant to the terms of the Plan.


 


(c)           “Cause” shall mean, when used
in connection with the termination of a Management Stockholder’s Employment,
unless otherwise provided in any stock option grant agreement entered between
the Company and the Management Stockholder with respect to any Options that may
be granted under the Plan, effective employment agreement or other written
agreement with respect to the termination of a Management Stockholder’s
Employment, the termination of the Management Stockholder’s Employment with the
Company and all Affiliates on account of  (i) a
failure of the Management Stockholder to substantially perform his or her
duties (other than as a result of physical or mental illness or injury) that
has continued after NMG has provided written notice of such failure and
Executive has not cured such failure within 30 days of the date of such written
notice; (ii) the Management Stockholder’s willful misconduct or gross
negligence which is materially injurious to the Company; (iii) a breach by
a Management Stockholder of the Management Stockholder’s fiduciary duty or duty
of loyalty to the Company and its Affiliates; (iv) the Management
Stockholder’s unauthorized removal from the premises of the Company or an
Affiliate of any document (in any medium or form) relating to the Company or an
Affiliate or the customers of the Company or an Affiliate; or (v) the
commission by the Management Stockholder of any felony or other serious crime
involving moral turpitude.  Any rights
the Company or an Affiliate may have hereunder in respect of the events giving
rise to Cause shall be in addition to the rights the Company or Affiliate may
have under any other agreement with the Management Stockholder or at law or in
equity.  If, subsequent to a Management
Stockholder’s termination of Employment, it is discovered that such Management
Stockholder’s Employment could have been terminated for Cause, the Management
Stockholder’s Employment shall, at the election of the Board, in its sole discretion,
be deemed to have been terminated for Cause retroactively to the date the
events giving rise to Cause occurred. 
Notwithstanding the foregoing, a failure to meet performance
expectations shall not, by itself, constitute Cause hereunder where the Board
determines that the Management Stockholder has performed his duties in good
faith.


 

















 


(d)           “Change
of Control” shall mean the occurrence of any of the following events after
the Effective Time: (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 Exchange Act (a “Group”),
together with any 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 Exchange Act), 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 over a two-year period from the
directors who constituted the Board 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 then still in office who either were members of such Board at the
beginning of such period or whose election as a member of such Board 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.


 


Notwithstanding the
foregoing, a Change of Control shall not be deemed to occur as a result of any
event or transaction to the extent that treating such event or transaction as a
Change of Control would cause any tax to become due under Section 409A of
the Code.


 


(e)                                  “Code” shall mean the Internal
Revenue Code of 1986, as amended.


 


(f)            “Disability”
shall mean, unless otherwise provided in any stock option grant agreement
entered between the Company and the Management Stockholder with respect to any
Options that may be granted under the Plan, effective employment agreement or
other written agreement, a permanent disability as defined in the Company’s or
an Affiliate’s disability plans, or as defined from time to time by the
Company, in its discretion.


 


(g)           “Effective Time”
shall have the meaning set forth in the Agreement and Plan of Merger by and
among the Company, Newton Acquisition Merger Sub, Inc. and The Neiman
Marcus Group, Inc, dated as of May 1, 2005.


 


(h)           “Employment” shall mean employment with the Company or
any Affiliate and shall include the provision of services as a director or
consultant for the Company or any Affiliate. 
“Employee” and “Employed”
shall have correlative meanings.


 


(i)            “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.


 


(j)            “Fair Market Value” shall
mean, as of any date:


 


i.      prior to the existence of a
Public Market (as defined in Section 6 below) for the Common Stock, the
value per share of Common Stock as determined in good faith by the Board; or


 


ii.     on which a Public Market for
the Common Stock exists, (i) 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 the immediately preceding date on which the


 

















 


Common Stock is traded, a bid and ask price is
reported or a trading price is reported by any member of NASD selected by the
Board.  In the event that the price of a
share of Common Stock shall not be so reported or furnished, the Fair Market
Value shall be determined by the Board in good faith to reflect the fair market
value of a share of Common Stock.


 


(k)           “Good
Reason” shall mean, unless otherwise provided in any stock option grant
agreement entered between the Company and the Management Stockholder with
respect to any Options that may be granted under the Plan, effective employment
agreement or other written agreement with respect to the termination of a
Management Stockholder’s Employment,  (i) a
material diminution in a Management Stockholder’s duties and responsibilities
other than a change in such Management Stockholder’s duties and
responsibilities that results from becoming part of a larger organization
following a Change of Control, (ii) a decrease in a Management Stockholder’s
base salary, bonus opportunity or benefits other than a decrease in bonus
opportunity or benefits that applies to all employees of the Company or its
Affiliates otherwise eligible to participate in the affected plan, or (iii) a
relocation of a Management Stockholder’s primary work location more than 50
miles from the Management Stockholder’s work location immediately prior to the
Management Stockholder’s execution of this Agreement, without the Management
Stockholder’s prior written consent; provided that, within thirty days
following the occurrence of any of the events set forth herein, the Management
Stockholder shall have delivered written notice to the Company of his or her
intention to terminate his or her Employment for Good Reason, which notice
specifies in reasonable detail the circumstances claimed to give rise to the
Management Stockholder’s right to terminate Employment for Good Reason, and the
Company shall not have cured such circumstances within thirty days following
the Company’s receipt of such notice.


 


(l)            “Majority
Stockholder,” for purposes of this Agreement, 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
Affiliates.


 


(m)          “Person” means an individual,
partnership, corporation, limited liability company, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.


 


(n)           “Retirement”
shall mean, when used in connection with the termination of a Management
Stockholder’s Employment, a voluntary resignation of Employment by the
Management Stockholder that occurs on or after (i) the first date on which
the Management Stockholder has both attained age 60 and completed 10 years of
service with the Company or its Affiliates or (ii) the date on which the
Management Stockholder attains age 65.


 


(o)           “Securities
Act” shall mean the Securities Act of 1933, as amended.


 


(p)           “Transfer” shall mean
any transfer, sale, assignment, gift, testamentary transfer, pledge,
hypothecation or other disposition of any interest.  “Transferee” and “Transferor”
shall have correlative meanings.


 


2.             Investment; Issuance
of Shares.


 


(a)           The Management
Stockholder represents that the Shares are being acquired for investment and
not with a view toward the distribution thereof.


 


(b)           Issuance of Shares.  The Management Stockholder acknowledges and
agrees that the certificate for the Shares shall bear the following legends
(except that the second paragraph of this legend shall not be required after
the Shares have been registered and except that the first paragraph of this
legend shall not be required after the termination of this Agreement):


 


The
shares represented by this certificate are subject to the terms and conditions
of a Management Stockholders’ Agreement dated as of October 6, 2005 and
may not be sold, transferred, hypothecated, assigned or encumbered, except as
may be permitted by the aforesaid Agreement. 
A


 

















 


copy of
the Management Stockholders’ Agreement may be obtained from the Secretary of
the Company.


 


The
shares represented by this certificate have not been registered under the
Securities Act of 1933.  The shares have
been acquired for investment and may not be sold, transferred, pledged or
hypothecated in the absence of an effective registration statement for the
shares under the Securities Act of 1933 or an opinion of counsel for the
Company that registration is not required under said Act.


 


Upon the termination of this Agreement, or upon
registration of the Shares under the Securities Act, the Management Stockholder
shall have the right to exchange any Shares containing the above legend (i) in
the case of the registration of the Shares, for Shares legended only with the
first paragraph described above and (ii) in the case of the termination of
this Agreement, for Shares legended only with the second paragraph described
above.


 


3.             Transfer of Shares; Call Rights;
Put Rights.


 


(a)           The
Management Stockholder agrees that he will not cause or permit the Shares or
his interest in the Shares to be sold, transferred, hypothecated, assigned or
encumbered except as expressly permitted by this Section 3; provided,
however, that the Shares or any such interest may be Transferred (i) on
the Management Stockholder’s death by bequest or inheritance to the Management
Stockholder’s executors, administrators, testamentary trustees, legatees or
beneficiaries, (ii) subject to compliance with all applicable tax,
securities and other laws, any “Family Member” as such term is defined in the Form S-8
Registration Statement under the Securities Act as of the date of Transfer, and
(iii) in accordance with Section 4 of this Agreement, subject in each
case to the agreement by each Transferee (other than the Company or as
otherwise permitted by the Company) in writing to be bound by the terms of this
Agreement as if such Transferee had been an original signatory hereto and
provided in any such case that, in the case of a Transfer pursuant to Section 3(a)(i) or
(ii), such Transfer will not be permitted if it would cause the Company to be
required to register the Common Stock under Section 12(g) of the
Exchange Act.


 


(b)           (i) 
In the event the Management Stockholder’s Employment with the Company is
terminated by the Company for Cause or by the Management Stockholder for any
reason other than Good Reason, death, Disability or Retirement, the Company (or
its designated assignee) shall have the right, during the 120-day period
following the later to occur of (x) such termination of Employment and (y) the
date on which the Management Stockholder or Transferee has held the Shares most
recently acquired to be sold pursuant to this Section 3(c) for at least
six (6) months, to purchase from the Management Stockholder or the
Management Stockholder’s Transferee, and upon the exercise of such right the
Management Stockholder or such Transferee shall sell to the Company (or its
designated assignee), all or any portion of the Shares acquired by the
Management Stockholder or Transferee on the exercise of Options and held by the
Management Stockholder or Transferee as of the date as of which such right is
exercised at a per Share price equal to the Fair Market Value of a share of
Common Stock determined as of the date such right is exercised.  The Company (or its designated assignee)
shall exercise such right by delivering to the Management Stockholder or
Transferee, as applicable, a written notice specifying its intent to purchase
Shares held by the Management Stockholder or Transferee (the “Call Notice”),
the date as of which such right is to be exercised and the number of Shares to
be purchased.  Such purchase and sale
shall occur on such date as the Company (or its designated assignee) shall
specify, which date shall be within thirty (30) days after the date on which
the Call Notice is delivered or the Outside Appraisal is delivered.  The Company will use commercially reasonable
efforts to make the payment for the Shares in cash on the date of such purchase
and sale; provided  that, despite using such efforts, if such
payment will result in the violation of the terms or provisions of, or result
in a default or event of default under, any guarantee, financing or security
agreement or document entered into by the Company or any of its Affiliates and
in effect on such date (hereinafter a “Financing Agreement”), the
Company may delay any such payment for no more than two (2) years.  In the event the payment of the purchase
price is delayed as a result of a restriction imposed by a Financing Agreement
as provided above, such payment shall be made without the application of
further conditions or impediments as soon as practicable after the payment of
such purchase price would no longer result in the violation of the terms or
provisions of, or result in a default or event of default under, any Financing
Agreement, and such payment shall equal the amount that would have been paid to
the Management Stockholder or Transferee if no delay had occurred plus interest
for the period from the date on which the purchase price would have been paid
but for the delay in payment provided herein to the


 

















 


date on which such
payment is made (the “Delay Period”), calculated at an annual rate equal
to the average annual prime rate charged during the Delay Period by a
nationally recognized bank designated by the Board plus two (2) percentage
points.  In the event that the Company is
not able to make payment within two (2) years after the date specified in
the Call Notice, the Company will, upon the written request of the Management
Stockholder or Transferee, cancel the Call Notice and return to the Management
Stockholder or Transferee the Shares subject to the Call Notice (as adjusted to
take into account any corporate transactions during the intervening period) in
exchange for cancellation of the debt and any interest payments that would have
otherwise been payable thereon.


 


(ii)           In
the event that the Management Stockholder or Transferee disagrees with the
Company’s determination of the Fair Market Value of a Share, the Management
Stockholder or Transferee shall have the right to require the Company to seek
an appraisal to determine the Fair Market Value of a Share in lieu of the Board
determination (an “Outside Appraisal”); provided that the
Transferee shall not be entitled to an Outside Appraisal in the event an
appraisal to determine the Fair Market Value of a Share has been done within
the three-month period immediately preceding delivery of the Call Notice and
the Board determines in good faith that no event has occurred that would result
in the prior determination of Fair Market Value being materially
inaccurate.  Any such Outside Appraisal
shall be made by one qualified person (which can be an accounting firm or
investment banking firm or similar firm) (each, an “Appraiser”), having
substantial experience in the valuation of similar enterprises in the United
States.  The Company and the Management
Stockholder or Transferee shall mutually agree upon such Appraiser within 30
days of the Call Notice; provided that in the event an appraisal to
determine Fair Market Value of a Share has been done within the twelve-month
period immediately preceding delivery of the Call Notice, the Outside Appraisal
shall be done by the same Appraiser that performed the prior appraisal unless
the Company consents to a different Appraiser. 
The Company shall each bear 100% of the fees and expenses of the
Appraiser.


 


(c)(i)        In the event the Management Stockholder’s Employment
with the Company terminates due to the death or Disability of the Management
Stockholder, such Management Stockholder or Transferee shall have the right,
during the 120-day period following the later to occur of (x) such
termination of Employment and (y) the date on which the Management
Stockholder or Transferee has held the Shares most recently acquired to be sold
pursuant to this Section 3(c) for at least six (6) months, to
sell to the Company (or its designated assignee), and upon the exercise of such
right the Company (or its designated assignee) shall purchase from the
Management Stockholder or Transferee, all or any portion of the Shares held by
the Management Stockholder or Transferee as of the date as of which such right
is exercised at a per Share price equal to the Fair Market Value of a Share of
Common Stock determined as of the date as of which such right is
exercised.  The Management Stockholder or
Transferee shall exercise such right by delivering to the Company a written
notice (the “Put Notice”) specifying his or her intent to sell Shares
held by the Management Stockholder or Transferee, the date as of which such
right is to be exercised and the number of Shares to be sold.  Such purchase and sale shall occur on such
date as the Company (or its designated assignee) and the Stockholder shall
agree, which date shall be within thirty (30) days after the later of the
delivery of the Put Notice or the delivery of the Outside Appraisal.  The Company will use commercially reasonable
efforts to make the payment for the Shares in cash on the date of such purchase
and sale; provided  that, despite using such efforts, if such
payment will result in the violation of the terms or provisions of, or result
in a default or event of default under, a Financing Agreement, the Company may
delay any such payment for no more than two (2) years.  In the event the payment of the purchase
price is delayed as a result of a restriction imposed by a Financing Agreement
as provided above, the Company shall notify the Management Stockholder or
Transferee as soon as practicable of the need for such a delay (the “Delay
Notice”), and shall permit the Management Stockholder or Transferee, within
ten (10) days of the delivery of the Delay Notice, to rescind the Put
Notice.  If the Management Stockholder or
Transferee does not rescind the Put Notice as provided in the preceding
sentence, the Put Notice shall remain outstanding and any payment in respect
thereof shall be made without the application of further conditions or impediments
as soon as practicable after the payment of such purchase price would no longer
result in the violation of the terms or provisions of, or result in a default
or event of default under, any Financing Agreement, and such payment shall
equal the amount that would have been paid to the Management Stockholder or
Transferee if no delay had occurred plus interest for the Delay Period,
calculated at an annual rate equal to the average annual prime rate charged
during the Delay Period by a nationally recognized bank designated by the Board
plus two (2) percentage points.  In
the event that the Company is not able to make payment within two (2) years
after the date specified in the Put Notice, the Company will, upon the written
request of the Management Stockholder or Transferee, cancel the Put Notice in
exchange for cancellation of the debt and any interest payments that would have
otherwise been payable thereon.


 

















 


(ii)           In
the event that the Management Stockholder or Transferee disagrees with the
Company’s determination of the Fair Market Value of a Share, the Management
Stockholder or Transferee shall have the right to require the Company to seek
an Outside Appraisal in accordance with the terms and conditions set forth in Section 3(b) of
this Agreement, substituting “Put Notice” in place of “Call Notice.”


 


(d)           In
addition, if the Board receives the advice of counsel selected by the Company
and reasonably acceptable to the Management Stockholder or any Transferee that
the inclusion of the call right or the put right described in this Section 3
would result in the Option or Shares becoming subject to Section 409A of
the Code, the Board shall have the right to make such modifications or
amendments to this Section 3 as the Board determines are reasonably
necessary to avoid the application of Section 409A of the Code without the
consent of the Management Stockholder or any Transferee.  In making any such amendments or
modifications, the Board shall take all steps to put the parties in
substantially same economic position as they would have been in had such
modifications or amendments not been made to the extent reasonably
practical.  The Management Stockholder
and any Transferee hereby stipulate that Cleary Gottlieb Steen and Hamilton LLP
is acceptable counsel for purposes of this Section 3(d).


 


4.             Certain
Rights.


 


(a)           Drag
Along Rights.  If one or more
Majority Stockholder desires to sell all or substantially all of the Shares of
Common Stock in which it has a “pecuniary interest” as defined in Rule 16a-1
of the Exchange Act (including through the disposition of interests in Newton
Holding, LLC) or a portion of the Shares of Common Stock representing Control
of the Company, in either case to a good faith independent purchaser (a “Purchaser”)
(other than any other Majority Stockholder, other investment partnership,
limited liability company or other entity established for investment purposes
and controlled by one or more of the members (other than passive investors) or
the principals of the Majority Stockholder or any of their Affiliates and other
than any Employees of the Majority Stockholder or their Affiliates hereinafter
referred to as a “Permitted Transferee”) and said Purchaser desires to
acquire all or substantially all of the issued and outstanding Shares of Common
Stock (or all or substantially all of the assets of the Company) upon such
terms and conditions as agreed to with the Majority Stockholder, the Management
Stockholder or Transferee agrees to sell to such Purchaser a number of its
Shares of Common Stock, not to exceed (a) the number of shares of Common
Stock held by such Management Stockholder or Transferee multiplied by (b) a
fraction, the numerator of which is the aggregate number of Shares of Common
Stock in which the Majority Stockholder has a pecuniary interest that such
Majority Stockholder has proposed to be transferred, and the denominator of
which is the aggregate number of Shares of Common Stock in which the Majority
Stockholder has a pecuniary interest (or to vote such number of his Shares in favor
of any merger or other transaction which would effect a sale of such shares of
Common Stock or assets of the Company) at the same price per Share of Common
Stock and pursuant to the same terms and conditions with respect to payment for
the Shares of Common Stock in which the Majority Stockholder has a pecuniary
interest as agreed to by the Majority Stockholder; provided that, except
with respect to any liability incurred by such Management Stockholder or any
Transferee individually, the Management Stockholders and any Transferees shall
not be liable to a Purchaser for an amount greater than the proceeds from the
sale.  In such case, the Majority
Stockholder shall give written notice of such sale to the Management
Stockholder or Transferee at least fifteen (15) days prior to the consummation
of such sale, setting forth (i) the consideration to be received by the
holders of Shares of Common Stock, (ii) the identity of the Purchaser, (iii) any
other material items and conditions of the proposed transfer and (iv) the
date of the proposed transfer.  The
Company shall be responsible for the proportionate Share of the costs of the
proposed Transfer incurred by the Management Stockholders and any Transferees
to the extent not paid or reimbursed by the proposed Purchaser.


 


For purposes of this Section 4(a), “Control of
the Company” shall mean the sale or disposition in a single transaction or
a series of related transactions of at least fifty percent (50)% of the issued and
outstanding Shares of Common Stock or securities representing at least fifty
percent (50)% of the voting power of the Company, including a disposition of
interests in Newton Holding, LLC that represents 50% or more of the voting
power of the Company.


 


(b)           Tag
Along Rights.  (i) Subject to
paragraph (iv) of this Section 4(b), if one or more Majority
Stockholder or its Permitted Transferee proposes to transfer its direct or
indirect pecuniary interest (as defined in Rule 16a-1 under the Exchange
Act) in any Shares of Common Stock to a Purchaser (other than a


 

















 


Permitted Transferee),
then the Majority Stockholder or his Permitted Transferee (hereinafter referred
to as a “Selling Stockholder”) shall give written notice of such
proposed transfer to the Management Stockholder or Transferee (the “Selling
Stockholder’s Notice”) at least thirty (30) days prior to the consummation
of such proposed transfer, and shall provide notice to all other stockholders
of the Company to whom the Majority Stockholder has granted similar “tag-along”
rights (such stockholders together with the Management Stockholder or
Transferee, referred to herein as the “Other Stockholders”) setting
forth the proposed material terms and conditions of such Transfer (including
price per Share).


 


(ii)           The Management
Stockholder or Transferee shall have the right to elect, by delivery of written
notice to the Majority Stockholder within twenty (20) days from delivery of the
Selling Stockholder’s Notice, to sell to the proposed transferee a number of
its Shares of Common Stock, not to exceed (a) the number of shares of
Common Stock and Shares underlying vested options held by such Management
Stockholder or Transferee multiplied by (b) a fraction, the numerator of
which is the aggregate number of Shares of Common Stock in which the Majority
Stockholder has a pecuniary interest that such Majority Stockholder has
proposed to be transferred, and the denominator of which is the aggregate
number of Shares of Common Stock in which the Majority Stockholder has a
pecuniary interest, on the same terms and conditions (including price per share
of Common Stock) as the Majority Stockholder. 
In the event that the transferee does not wish to acquire all of the
Shares offered by the Management Stockholder or Transferee, the number of
Shares of Common Stock to be purchased by such transferee shall be allocated
pro rata among the Majority Stockholders and the Other Stockholders in
accordance with the number of shares of Common Stock and Shares underlying
vested Options that each such stockholder elected to transfer to the
transferee.


 


(iii)          Any transfer of Shares
by the Management Stockholder or Transferee shall be at the same price per
Share of Common Stock and pursuant to the same terms and conditions with
respect to payment for the Shares of Common Stock as agreed to by the Selling
Stockholder with respect to the sale of its pecuniary interest in the Shares,
provided, that in order to be entitled to exercise its tag-along rights
pursuant to this Section 4(b), the Management Stockholder or Transferee
must agree to make to the proposed Purchaser, representations, warranties,
covenants, indemnities and agreements comparable to those made by the Selling
Stockholder in connection with the proposed transfer and agree to the same
conditions to the proposed transfer as the Selling Stockholder agrees, it being
understood that all such representation, warranties, covenants, indemnities and
agreements shall be made by the Selling Stockholder, the Management Stockholder
or Transferee and any Other Stockholder exercising similar tag-along rights
severally and not jointly.  The Selling
Stockholder, the Management Stockholder and any Other Stockholder who exercises
similar tag-along rights shall be responsible for their proportionate share of
the costs of the proposed Transfer to the extent not paid or reimbursed by the
proposed Purchaser or the Company.


 


(iv)          In
connection with the exercise of its tag-along rights under this Section 4(b),
if the Management Stockholder or Transferee desires to exercise vested Options
to acquire up to the number of Shares the Management Stockholder or Transferee
is permitted to sell pursuant to the exercise of its tag-along rights pursuant
to this Section 4(b), the Company will permit the Management Stockholder
or Transferee to exercise any such vested Options through net-physical
settlement (net of the applicable exercise price and applicable withholding
taxes) if the Company’s independent auditors determine that net-physical
settlement of any such Options would not produce less-favorable accounting
consequences for the Company than if the Management Stockholder or Transferee
paid the exercise price for any such vested Options in cash.


 


(v)           Notwithstanding
anything to the contrary contained herein, the provisions of this Section 4(b) shall
not apply during the period from the Effective Date through the first
anniversary of the Effective Date to any sale or transfer by a Majority
Stockholder of its pecuniary interest in any shares of Common Stock for a price
that is equal to or less than the Fair Market Value of such share of Common
Stock as of the Effective Date unless and until the Majority Stockholder, after
giving effect to the proposed sale or transfer, shall have sold or transferred
in the aggregate (other than to Permitted Transferees) its pecuniary interest
in shares of Common Stock representing 15.0% or more of the shares of Common
Stock in which the Majority Stockholder collectively had a pecuniary interest
as of the Effective Time.


 

















 


(c)           Permitted
Transferees.  Any Permitted
Transferee to which a Majority Stockholder’s pecuniary interest in any shares
of Common Stock is Transferred shall agree to execute this Agreement as a
condition to such Transfer.


 


5.             Piggyback Registration
Rights.


 


(a)           Notice
to Management Stockholder.  If the
Company determines that it will file a registration statement under the
Securities Act, other than a registration statement on Form S-4 or Form S-8
or any successor form, for an offering which includes shares of Common Stock
held by the Majority Stockholder, then the Company shall give prompt written
notice to the Management Stockholder or Transferee that such filing is expected
to be made (but in no event less than 30 days nor more than 60 days in advance
of filing such registration statement), the jurisdiction or jurisdictions in
which such offering is expected to be made, and the underwriter or underwriters
(if any) that the Company (or the person requesting such registration) intends
to designate for such offering.  If the Company,
within 15 days after giving such notice, receives a written request for
registration of any Shares from the Management Stockholder or Transferee, then
the Company shall include in the same registration statement the number of
Shares to be sold by the Management Stockholder or Transferee as shall have
been specified in his or her request, except that the Management Stockholder or
Transferee shall not be permitted to register more than a Pro Rata Portion of
her Shares.  The Company shall bear all
costs of preparing and filing the registration statement, and shall indemnify
and hold harmless, to the extent customary and reasonable, pursuant to
indemnification and contribution provisions to be entered into by the Company
at the time of filing of the registration statement, the seller of any shares
of Common Stock covered by such registration statement.


 


Notwithstanding anything herein to the contrary, the
Company, on prior notice to the participating Stockholder, may abandon its
intention to file a registration statement under this Section 5(a) at
any time prior to such filing.


 


For purposes of Section 5 hereof, “Pro Rata
Portion” shall mean a number equal to the product of (x) the total
number of Shares, including any shares of Common Stock underlying vested
Options, owned by the Management Stockholder or Transferee and (y) a
fraction, the numerator of which shall be the total number of shares of Common
Stock offered (for sale or registration, as applicable) by the Majority
Stockholder, and the denominator of which shall be the total number of shares
of Common Stock owned by the Majority Stockholder.


 


(b)           Allocation.  If the managing underwriter shall inform the
Company in writing that the number of shares of Common Stock requested to be
included in such registration exceeds the number which can be sold in (or
during the time of) such offering within a price range acceptable to the
Majority Stockholder, then the Company shall include in such registration such
number of shares of Common Stock which the Company is so advised can be sold in
(or during the time of) such offering. 
All holders of shares of Common Stock proposing to sell shares of Common
Stock shall share pro rata in the number of shares of Common Stock to be
excluded from such offering, such sharing to be based on the respective numbers
of shares of Common Stock as to which registration has been requested by such
holders.


 


(c)           Permitted
Transfer.  Notwithstanding anything
to the contrary contained herein, sales of Shares pursuant to a registration
statement filed by the Company may be made without compliance with any other
provision of this Agreement.


 


6.             Termination.  This Agreement shall terminate with respect
to the Common Stock immediately following the existence of a Public Market for
the Common Stock except that the requirements contained in Section 2
hereof shall survive the termination of this Agreement; provided  that
a Management Stockholder or his Transferee may sell Shares pursuant to Rule 144
of the Securities Act if such Management Stockholder or Transferee meets and
complies with all of the applicable requirements thereof.  If, and only to the extent that, the
Management Stockholder or his Transferee is not permitted to sell such Shares
pursuant to Rule 144 of the Securities Act and such Shares are not
included on a registration statement filed to register the sale of securities
under the Securities Act, such Management Stockholder or Transferee may
transfer such Shares only in accordance with Section 3(a) hereof.  For this purpose, a “Public Market”
for the Common Stock shall be deemed to exist if at least 20% of the total
outstanding Common Stock is registered under Section 12(b) or 12(g) of
the Exchange Act.


 

















 


7.             Acknowledgement of
Newton Holding, LLC and the Company. 
The Company and Newton Holding, LLC (“Newton LLC”) hereby
acknowledge that the Management Stockholders shall not be disadvantaged with
respect to the Shares or Options solely by reason of holding shares or options
to purchase shares of the Company’s Common Stock instead of membership
interests or options to purchase membership interests in Newton LLC.  In the event there is a corporate transaction
affecting the membership interests of Newton LLC or any dividend or
distribution made to holders of the membership interests in Newton LLC in
respect of such interests, the Company and Newton Holding shall take
commercially reasonable steps to assure that appropriate adjustments and/or
dividends or distributions are made to or in respect of the Shares such that
the Management Stockholders will be in the same position in which they would
have been had they received membership interests in Newton LLC instead of the
Shares; provided that this Section 7 shall not be construed to
entitle any Management Stockholder to any membership or other interests in
Newton LLC.   For purposes of this
Agreement, no Management Stockholder shall be deemed to be disadvantaged from a
tax perspective by reason of his holding Options or Shares as opposed to
membership interests in a limited liability company or partnership interests in
a partnership.


 


8.             Distributions With
Respect To Shares.  As used herein,
the term “Shares” includes securities of any kind whatsoever distributed
with respect to the Company’s Common Stock acquired by the Management
Stockholder or his or her Transferee (whether pursuant to the Plan, the letter
agreement dated on or about September 30, 3005 between the Company and
such Management Stockholder or otherwise) or any such securities resulting from
a stock split or consolidation involving such Common Stock.


 


9.             Amendment;
Assignment.  This Agreement may be
amended, superseded, canceled, renewed or extended, and the terms hereof may be
waived, only by a written instrument signed by authorized representatives of
the parties or, in the case of a waiver, by an authorized representative of the
party waiving compliance.  No such
written instrument shall be effective unless it expressly recites that it is
intended to amend, supersede, cancel, renew or extend this Agreement or to
waive compliance with one or more of the terms hereof, as the case may be.  Except for the Management Stockholder’s right
to assign his or her rights under Section 4(a) or the Company’s right
to assign its rights under Section 4(b), no party to this Agreement may
assign any of its rights or obligations under this Agreement without the prior
written consent of the other parties hereto.


 


10.           Notices. Each
notice and other communication hereunder shall be in writing and shall be given
and shall be deemed to have been duly given on the date it is delivered in person,
on the next business day if delivered by overnight mail or other reputable
overnight courier, or the third business day if sent by registered mail, return
receipt requested, to the parties as follows:


 


If to the Majority Stockholder, to his most recent
address shown on records of the Company or its Affiliate;


 


With a copy to:


 


Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, NY 10006


 


Attention: 
Robert J. Raymond


 


If to the Company:


 


Newton Acquisition, Inc.

301 Commerce Street, Suite 3300

Fort Worth, TX 76102


 


Attention: General Counsel


 


With a copy to:


 

















 


Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, NY 10006


 


Attention: 
Robert J. Raymond


 


If to the Management Stockholder, to its most recent
address shown on records of the Company or its Affiliate;


 


With a copy to:


 


Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178


 


Attention: 
Gary Rothstein


 


or to such other address as any party may have
furnished to the others in writing in accordance herewith, except that notices
of change of address shall only be effective upon receipt.


 


11.           Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of
which together shall constitute one and the same document.


 


12.           Governing Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its principles of conflicts of law.


 


13.           Binding Effect.  This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the heirs, personal representatives,
successors and permitted assigns of the parties hereto.  Nothing expressed or referred to in this
Agreement is intended or shall be construed to give any person other than the
parties to this Agreement, or their respective heirs, personal representatives,
successors or assigns, any legal or equitable rights, remedy or claim under or
in respect of this Agreement or any provision contained herein.


 


14.           Entire Agreement.  This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.


 


15.           Severability.  If any term, provision, covenant or
restriction of this Agreement, is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.


 


16.           Miscellaneous.  The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.


 


*    
*     *     *    
*     *


 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.


 


	
   

  	
   

  	
   

  	
  NEWTON ACQUISITION, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David A. Spuria

  
	
   

  	
  Name:

  	
   

  	
  David A. Spuria

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  



 
















 


	
  

  	
   

  	
   

  	
  NEWTON HOLDING, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David A.
  Spuria

  
	
   

  	
  Name:

  	
   

  	
  David A. Spuria

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President & Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  TPG NEWTON III LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  TPG Partners III, L.P., its
  Managing Member

  
	
   

  	
  By:

  	
   

  	
  TPG GenPar III, L.P., its
  General Partner

  
	
   

  	
  By:

  	
   

  	
  TPG Advisors III, Inc.,
  its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David A.
  Spuria

  
	
   

  	
  Name

  	
   

  	
  David A. Spuria

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  TPG PARTNERS IV, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  TPG Gen Par IV, L.P., its
  General Partner

  
	
   

  	
  By:

  	
   

  	
  TPG Advisors IV, Inc., its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David A.
  Spuria

  
	
   

  	
  Name:

  	
   

  	
  David A. Spuria

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  TPG NEWTON CO-INVEST I LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  TPG GenPar IV, L.P., its
  Managing Member

  
	
   

  	
  By:

  	
   

  	
  TPG Advisors IV, Inc., its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David A.
  Spuria

  
	
   

  	
  Name:

  	
   

  	
  David A. Spuria

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  WARBURG PINCUS PRIVATE

  
	
   

  	
   

  	
   

  	
  EQUITY
  VIII, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus Partners, LLC,
  its General Partner

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus & Co.,
  its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kewsong Lee

  
	
   

  	
  Name:

  	
   

  	
  Kewsong Lee

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  WARBURG PINCUS NETHLANDS
  PRIVATE

  
	
   

  	
   

  	
   

  	
  EQUITY
  VIII C.V.I.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus Partners, LLC,
  its General Partner

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus & Co.,
  its Managing Member

  



 

















 


	
  

  	
  By:

  	
   

  	
  /s/ Kewsong Lee

  
	
   

  	
  Name:

  	
   

  	
  Kewsong Lee

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  WARBURG PINCUS GERMANY PRIVATE

  
	
   

  	
   

  	
   

  	
  EQUITY VIII K.G.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus Partners, LLC,
  its General Partner

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus & Co.,
  its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kewsong Lee

  
	
   

  	
  Name:

  	
   

  	
  Kewsong Lee

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  WARBURG PINCUS PRIVATE EQUITY

  
	
   

  	
   

  	
   

  	
  IX, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  Warburg Pincus IX LLC, its
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kewsong Lee

  
	
   

  	
  Name:

  	
   

  	
  Kewsong Lee

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  



 

















 


SCHEDULE A


MANAGEMENT
STOCKHOLDERS


 


	
  

  	
  By:

  	
   

  	
  /s/ Gerald A. Barnes

  
	
   

  	
  Name:

  	
   

  	
  Gerald A. Barnes

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Steven P. Dennis

  
	
   

  	
  Name:

  	
   

  	
  Steve P. Dennis

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jeanie Galvin

  
	
   

  	
  Name:

  	
   

  	
  Jeanie Galvin

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ronald H. Goddard

  
	
   

  	
  Name:

  	
   

  	
  Ronald H. Goddard

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ James J. Gold

  
	
   

  	
  Name:

  	
   

  	
  James J. Gold

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Neva L. Hall

  
	
   

  	
  Name:

  	
   

  	
  Neva L. Hall

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ginny Hershey

  
	
   

  	
  Name:

  	
   

  	
  Mary Virginia Hershey

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Brendan Hoffman

  
	
   

  	
  Name:

  	
   

  	
  Brendan Hoffman

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne A. Hussey

  
	
   

  	
  Name:

  	
   

  	
  Wayne A. Hussey

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jonathan Joselove

  
	
   

  	
  Name:

  	
   

  	
  Jonathan Joselove

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Karen Katz

  
	
   

  	
  Name:

  	
   

  	
  Karen Katz

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Lisa M. Kazor

  
	
   

  	
  Name:

  	
   

  	
  Lisa M. Kazor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Steven Kornajcik

  
	
   

  	
  Name:

  	
   

  	
  Steven Kornajcik

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Lind

  
	
   

  	
  Name:

  	
   

  	
  Thomas Lind

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marita O’Dea Glodt

  
	
   

  	
  Name:

  	
   

  	
  Marita O’Dea Goldt

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ann S. Paolini

  
	
   

  	
  Name:

  	
   

  	
  Ann S. Paolini

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ John Russell
  Patrick

  
	
   

  	
  Name:

  	
   

  	
  John Russell Patrick

  



 


A-1

















 


	
  

  	
  By:

  	
   

  	
  /s/ Gregory G. Shields

  
	
   

  	
  Name:

  	
   

  	
  Gregory G. Shields

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Stacie Shirley

  
	
   

  	
  Name:

  	
   

  	
  Stacie Shirley

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ James E. Skinner

  
	
   

  	
  Name:

  	
   

  	
  James E. Skinner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Margaret E.
  Spaniolo

  
	
   

  	
  Name:

  	
   

  	
  Margaret E. Spaniolo

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas P. Stangle

  
	
   

  	
  Name:

  	
   

  	
  Thomas P. Stangle

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ T. Dale Stapleton

  
	
   

  	
  Name:

  	
   

  	
  T. Dale Stapleton

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Ann Stordahl

  
	
   

  	
  Name:

  	
   

  	
  Ann Stordahl

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Burton M. Tansky

  
	
   

  	
  Name:

  	
   

  	
  Burton M. Tansky

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Kim Yee

  
	
   

  	
  Name:

  	
   

  	
  Kim Yee

  



 


A-2