**Exhibit 10.20**

 

**EXECUTION VERSION**

 

**REGISTRATIONRIGHTS AGREEMENT**

** **

**BYAND AMONG**

** **

**NEWTONACQUISITION MERGER SUB, INC.,**

** **

**NEWTONACQUISITION, INC.,**

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**NEWTONHOLDING, INC.**

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**TPGPARTNERS IV, L.P.,**

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**TPGNEWTON III LLC,**

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**TPGNEWTON CO-INVEST I LLC,**

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**DLJMERCHANT BANKING PARTNERS III, L.P.,**

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**DLJOFFSHORE PARTNERS III-1, C.V.,**

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**DLJOFFSHORE PARTNERS III-2, C.V.,**

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**DLJOFFSHORE PARTNERS III, C.V.,**

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**DLJMB PARTNERS III GMBH & CO. KG,**

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**MILLENNIUMPARTNERS II, L.P.,**

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**MBPIII PLAN INVESTORS, L.P.,**

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**WARBURGPINCUS PRIVATE EQUITY VIII, L.P.,**

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**WARBURGPINCUS PRIVATE EQUITY IX, L.P.,**

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**WARBURGPINCUS NETHERLANDS PRIVATE EQUITY VIII, C.V. I,**

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**WARBURGPINCUS GERMANY PRIVATE EQUITY VIII K.G.,**

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**NEWTONCO-INVEST I LLC**

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**AND**

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**NEWTONCO-INVEST II LLC**

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**DATED as of OCTOBER 6, 2005**

 

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**TABLE OF CONTENTS**

 
| ** **           | ** **                                     | **Page** |
|----------------------|------------------------------------------------|----------|
|                 |                                           |     |
| ARTICLE I       |
| DEFINITIONS          |
|                 |                                           |     |
| Section 1.01.   | Defined Terms                                  | 1        |
| Section 1.02.   | Other Interpretive  Provisions                 | 5        |
|                 |                                           |     |
| ARTICLE II      |
| REGISTRATION  RIGHTS |
|                 |                                           |     |
| Section 2.01.   | Demand Registration                            | 5        |
| Section 2.02.   | Shelf Registration                             | 8        |
| Section 2.03.   | Piggyback Registration                         | 9        |
| Section 2.04.   | Black-out Periods                              | 11       |
| Section 2.05.   | Registration Procedures                        | 12       |
| Section 2.06.   | Underwritten Offerings                         | 16       |
| Section 2.07.   | No Inconsistent  Agreements; Additional Rights | 18       |
| Section 2.08.   | Registration Expenses                          | 18       |
| Section 2.09.   | Indemnification                                | 18       |
| Section 2.10.   | Rules 144 and 144A  and Regulation S | 21       |
|                 |                                           |     |
| ARTICLE III     |
| MISCELLANEOUS        |
|                 |                                           |     |
| Section 3.01.   | Term                                           | 22       |
| Section 3.02.   | Injunctive Relief                              | 22       |
| Section 3.03.   | Attorneys’ Fees                           | 22       |
| Section 3.04.   | Notices                                        | 22       |
| Section 3.05.   | Amendment                                      | 24       |
| Section 3.06.   | Successors, Assigns and  Transferees           | 24       |
| Section 3.07.   | Binding Effect                                 | 24       |
| Section 3.08.   | Third Parties                                  | 24       |
| Section 3.09.   | Governing Law;  Jurisdiction                   | 25       |
| Section 3.10.   | Severability                                   | 25       |
| Section 3.11.   | Counterparts                                   | 25       |
| Section 3.12.   | Headings                                       | 25       |

 

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**REGISTRATION RIGHTS AGREEMENT**

** **

REGISTRATION RIGHTS AGREEMENT (the “Agreement”),dated as of October 6, 2005, by and among Newton Holding, LLC, a Delawarelimited liability company (“Holding”), Newton Acquisition Inc., aDelaware corporation (“Newton”), Newton Acquisition Merger Sub, Inc.,a Delaware corporation (together with its successors, “MergerSub”, and,collectively with Holding, Newton, and any of their respective successors, the “Company”)and TPG Partners IV, L.P., TPG Newton III LLC, TPG Newton Co-Invest I LLC, DLJMerchant Banking Partners III, L.P., DLJ Offshore Partners III-1, C.V., DLJOffshore Partners III-2, C.V., DLJ Offshore Partners III, C.V., DLJ MB PartnersIII GmbH & Co. KG, Millennium Partners II, L.P., MBP III PlanInvestors, L.P., Warburg Pincus Private Equity VIII, L.P., Warburg PincusPrivate Equity IX, L.P., WarburgPincus Netherlands Private Equity VIII, C.V. I, Warburg Pincus GermanyPrivate Equity VIII K.G., Newton Co-Invest I LLC and Newton Co-Invest II LLC.

 

WITNESSETH**:**

 

WHEREAS, as of the date hereof, the Holders (asdefined below) own Registrable Securities (as defined below) of the Company;and

 

WHEREAS, the parties desire to set forth certainregistration rights applicable to the Registrable Securities of the Company.

 

NOW, THEREFORE, in consideration of the foregoing andthe mutual promises, covenants and agreements of the parties hereto, and forother good and valuable consideration the receipt and sufficiency of which arehereby acknowledged, the parties hereto agree as follows:

 

ARTICLE IDEFINITIONS

 

SECTION 1.01.      DefinedTerms.  As used in this Agreement,the following terms shall have the following meanings:

 

“Adverse Disclosure” means public disclosure ofmaterial non-public information that, in the Board of Directors’ good faithjudgment, after consultation with independent outside counsel to the Company, (i) wouldbe required to be made in any Registration Statement filed with the SEC by theCompany so that such Registration Statement would not be materially misleading;(ii) would not be required to be made at such time but for the filing ofsuch Registration Statement; and (iii) the Company has a bonafidebusiness purpose for not disclosing publicly.

 

“Agreement” has the meaning set forth in thepreamble.

 

“Affiliate” has the meaning specified in Rule 12b-2under the Exchange Act.  The term “Affiliated”has a correlative meaning.

 

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“Board of Directors” means the board ofdirectors of the Company.

 

“Business Day” means any day other than aSaturday, Sunday or a day on which commercial banks located in New York, NewYork or Fort Worth, Texas are required or authorized by law to be closed.

 

“Common Share Equivalents” means securities(including, without limitation, warrants) exercisable, exchangeable orconvertible into Common Shares.

 

“Common Shares” means the shares of commonstock, par value $.01 per share, of the Company, any securities into which suchshares of common stock shall have been changed or any securities resulting fromany reclassification or recapitalization of such shares of common stock.

 

“Company” has the meaning set forth in thepreamble and shall include the Company’s successors by merger, acquisition,reorganization, conversion or otherwise.

 

“Company Public Sale” has the meaning set forthin Section 2.03(a).

 

“Company Shares” means Common Shares and CommonShare Equivalents.

 

“Demand Notice” has the meaning set forth in Section 2.01(e).

 

“Demand Period” has the meaning set forth in Section 2.01(d).

 

“Demand Registration” has the meaning set forthin Section 2.01(a).

 

“Demand Registration Statement” has the meaningset forth in Section 2.01(a).

 

“Demand Suspension” has the meaning set forthin Section 2.01(g).

 

“Demanding Sponsor” has the meaning set forthin Section 2.01(a).

 

“Effectiveness Date” means the date on whichHolders are no longer subject to any underwriter’s lock-up or other contractualrestriction on the sale of Registrable Securities in connection with theCompany’s QPO.

 

“Exchange Act” means the Securities ExchangeAct of 1934, as amended, and any successor thereto, and any rules andregulations promulgated thereunder, all as the same shall be in effect fromtime to time.

 

“Holder” means any holder of RegistrableSecurities who is a party hereto or who succeeds to rights hereunder pursuantto Section 4.06.

 

“Holding” has the meaning set forth in thepreamble and shall include Holding’s successors by merger, acquisition,reorganization, conversion or otherwise.

 

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“Holding LLC Agreement” means the Amended andRestated Limited Liability Company Operating Agreement of Holding, dated as ofthe date hereof, as amended, modified or supplemented from time to time.

 

“Long-Form Registration Statement” has themeaning set forth in Section 2.01(a).

 

“Material Adverse Change” means (i) anygeneral suspension of trading in, or limitation on prices for, securities onany national securities exchange or in the over-the-counter market in theUnited States; (ii) the declaration of a banking moratorium or anysuspension of payments in respect of banks in the United States; (iii) amaterial outbreak or escalation of armed hostilities or other international ornational calamity involving the United States or the declaration by the UnitedStates of a national emergency or war or a change in national or internationalfinancial, political or economic conditions; and (iv) any event, change,circumstance or effect that is or is reasonably likely to be materially adverseto the business, properties, assets, liabilities, condition (financial orotherwise), operations, results of operations or prospects of the Company andits subsidiaries taken as a whole.

 

“MergerSub” has the meaning set forth in thepreamble.

 

“NASD” means the National Association ofSecurities Dealers, Inc.

 

“Newton” has the meaning set forth in preamble.

 

“Participating Holder” means, with respect toany Registration, any Holder of Registrable Securities covered by theapplicable Registration Statement.

 

“Permitted Transferee” has the meaning setforth in Section 4.06.

 

“Person” means any individual, partnership,corporation, limited liability company, unincorporated organization, trust orjoint venture, or a governmental agency or political subdivision thereof.

 

“Piggyback Registration” has the meaning setforth in Section 2.03(a).

 

“Preemption Notice” has the meaning set forthin Section 2.01(f).

 

“Prospectus” means the prospectus included inany Registration Statement, all amendments and supplements to such prospectus,including pre- and post-effective amendments to such Registration Statement,and all other material incorporated by reference in such prospectus.

 

“Qualified Public Offering” or “QPO”means the first underwritten public offering and sale of equity securities ofthe Company or its successor for cash pursuant to an effective registrationstatement (other than on Form S-4, S-8 or a comparable form) under theSecurities Act with the aggregate net proceeds to the Company or its successorunder such offering or sale, in combination with any previous underwrittenpublic offering or sale of equity securities of the Company or its successorfor cash pursuant to an effective registration statement 

 

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(other than on Form S-4, S-8 or a comparable form) under theSecurities Act, in excess of $300,000,000.

 

“Registrable Securities” means any CompanyShares and any securities that may be issued or distributed or be issuable inrespect of any Company Shares by way of conversion, dividend, stock split orother distribution, merger, consolidation, exchange, recapitalization orreclassification or similar transaction; provided, however, thatany such Registrable Securities shall cease to be Registrable Securities to theextent (i) a Registration Statement with respect to the sale of suchRegistrable Securities has been declared effective under the Securities Act andsuch Registrable Securities have been disposed of in accordance with the planof distribution set forth in such Registration Statement, (ii) suchRegistrable Securities have been distributed pursuant to Rule 144 (or anysimilar provisions then in force) under the Securities Act or (iii) suchRegistrable Securities shall have been otherwise transferred and newcertificates for them not bearing a legend restricting transfer under theSecurities Act shall have been delivered by the Company and such securities maybe publicly resold without Registration under the Securities Act.

 

“Registration” means a registration with theSEC of the Company’s securities for offer and sale to the public under aRegistration Statement.  The term “Register”shall have a correlative meaning.

 

“Registration Expenses” has the meaning setforth in Section 2.08.

 

“Registration Statement” means any registrationstatement of the Company filed with, or to be filed with, the SEC under the rules andregulations promulgated under the Securities Act, including the relatedProspectus, amendments and supplements to such registration statement,including pre- and post-effective amendments, and all exhibits and all materialincorporated by reference in such registration statement.

 

“Representatives” means, with respect to anyPerson, any of such Person’s officers, directors, employees, agents, attorneys,accountants, actuaries, consultants, equity financing partners or financialadvisors or other Person associated with, or acting on behalf of, such Person.

 

“SEC” means the Securities and ExchangeCommission.

 

“Securities Act” means the Securities Act of1933, as amended, and any successor thereto, and any rules and regulationspromulgated thereunder, all as the same shall be in effect from time to time.

 

“Shelf Period” has the meaning set forth in Section 2.02(b).

 

“Shelf Registration” means a Registrationeffected pursuant to Section 2.02.

 

“Shelf Registration Statement” means aRegistration Statement of the Company filed with the SEC on either (i) Form S-3(or any successor form or other appropriate form under the Securities Act) or (ii) ifthe Company is not permitted to file a Registration Statement on Form S-3,an evergreen Registration Statement on Form S-1 (or any successor form orother 

 

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appropriate form under the Securities Act), in each case for anoffering to be made on a continuous basis pursuant to Rule 415 under theSecurities Act (or any similar rule that may be adopted by the SEC)covering the Registrable Securities, as applicable.

 

“Shelf Suspension” has the meaning set forth inSection 2.02(d).

 

“Short-Form Registration Statement” hasthe meaning set forth in Section 2.01(a).

 

“Sponsors” means each of TPG and WP.

 

“TPG” means, collectively, TPG Partners IV,L.P., TPG Newton III LLC, TPG Newton Co-Invest I LLC and their respectiveAffiliates and permitted assignees hereunder.

 

“Underwritten Offering” means a Registration inwhich securities of the Company are sold to an underwriter or underwriters on afirm commitment basis for reoffering to the public.

 

“WP” means, collectively, Warburg PincusPrivate Equity VIII, L.P., WarburgPincus Netherlands Private Equity VIII, C.V. I, Warburg Pincus GermanyPrivate Equity VIII K.G., Warburg Pincus Private Equity IX, L.P. and theirrespective Affiliates and permitted assignees hereunder.

 

SECTION 1.02.      OtherInterpretive Provisions.  (a) The meanings of defined terms are equally applicable to the singular and pluralforms thereof.

 

(b)           Thewords “hereof”, “herein”, “hereunder” and similar wordsrefer to this Agreement as a whole and not to any particular provision of thisAgreement; and any subsection, Section, Exhibit, Schedule and Annexreferences are to this Agreement unless otherwise specified.

 

(c)           Theterm “including” is not limiting and means “including withoutlimitation.”

 

(d)           Thecaptions and headings of this Agreement are for convenience of reference onlyand shall not affect the interpretation of this Agreement.

 

(e)           Wheneverthe context requires, any pronouns used herein shall include the correspondingmasculine, feminine or neuter forms.

 

ARTICLE IIREGISTRATION RIGHTS

 

SECTION 2.01.      DemandRegistration.

 

(a)           Demandby the Sponsors.  If, after theEffectiveness Date, there is no currently effective Shelf RegistrationStatement on file with the SEC, a Sponsor holding, directly or indirectly, inthe aggregate, not less than five percent (5%) of the Registrable Securitiesthen 

 

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outstanding may make a written request to the Companyfor Registration of all or part of the Registrable Securities held by suchSponsor (a “Demanding Sponsor”) (i) on Form S-1 or any similarlong-form registration statement (a “Long-Form Registration”) or (ii) onForm S-3 or any similar short-form registration statement (a “Short-Form RegistrationStatement”) if the Company qualifies to use such short form.  Any such requested Long-Form Registrationor Short-Form Registration shall hereinafter be referred to as a “DemandRegistration.”  Each request for aDemand Registration shall specify the kind and aggregate amount of RegistrableSecurities to be Registered and the intended methods of dispositionthereof.  Within thirty (30) days of arequest for a Demand Registration, the Company shall file a RegistrationStatement relating to such Demand Registration (a “Demand RegistrationStatement”), and shall use its reasonable best efforts to cause such DemandRegistration Statement to promptly be declared effective under (x) theSecurities Act and (y) the “Blue Sky” laws of such jurisdictions as any ParticipatingHolder or any underwriter, if any, reasonably requests.

 

(b)           Limitationon Demand Registrations.  EachSponsor shall have the right to request up to three (3) Long-Form Registrationsand an unlimited number of Short-Form Registrations.  Notwithstanding the foregoing, (i) eachSponsor may request no more than two (2) Demand Registration in any twelve(12) - month period and (ii) in no event shall the Company be required toeffect more than three (3) Demand Registrations in any twelve (12) - monthperiod.

 

(c)           Demand Withdrawal.  A Demanding Sponsor and any other Holder thathas requested its Registrable Securities be included in a Demand Registrationpursuant to Section 2.01(e) may withdraw its Registrable Securities from aDemand Registration at any time prior to the effectiveness of the applicableDemand Registration Statement.  Uponreceipt of a notice to such effect from the Demanding Sponsor, the Companyshall cease all efforts to secure effectiveness of the applicable DemandRegistration Statement and such Registration nonetheless shall be deemed aDemand Registration with respect to the Demanding Sponsor for purposes ofSection 2.01(b) unless (i) the withdrawing Demanding Sponsor shall have paid orreimbursed the Company for its prorata share of all reasonableand documented out-of-pocket fees and expenses incurred by the Company inconnection with the Registration of such Demanding Sponsor’s withdrawnRegistrable Securities (based on the number of securities the Demanding Sponsorsought to register, as compared to the total number of securities included onsuch Demand Registration Statement) or (ii) the withdrawal is made followingthe occurrence of a Material Adverse Change or because the Registration wouldrequire the Company to make an Adverse Disclosure.

 

(d)           EffectiveRegistration.  The Company shall bedeemed to have effected a Demand Registration if the Demand RegistrationStatement is declared effective by the SEC and remains effective for not lessthan one hundred eighty (180) days (or such shorter period as shall terminatewhen all Registrable Securities covered by such Demand Registration Statementhave been sold or withdrawn), or if such Registration Statement relates to anUnderwritten Offering, such longer period as, in the opinion of counsel for theunderwriter or underwriters, a Prospectus is required by law to be delivered inconnection with sales of Registrable Securities by an underwriter or dealer(the applicable period, the “Demand Period”).  No Demand Registration shall be deemed tohave been effected if (i) during the Demand Period such Registration isinterfered with by any stop order, injunction or other order or requirement ofthe SEC or other

 

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governmental agency or court or (ii) theconditions to closing specified in the underwriting agreement, if any, enteredinto in connection with such Registration are not satisfied other than byreason of a wrongful act, misrepresentation or breach of such applicableunderwriting agreement by the Demanding Sponsor.

 

(e)           DemandNotice.  Promptly upon receipt of anyrequest for a Demand Registration pursuant to Section 2.01(a) (but inno event more than five (5) Business Days thereafter), the Company shalldeliver a written notice (a “Demand Notice”) of any such Registrationrequest to all other Holders, and the Company shall include in such DemandRegistration all such Registrable Securities with respect to which the Companyhas received written requests for inclusion therein within ten (10) BusinessDays after the date that the Demand Notice has been delivered.  All requests made pursuant to this Section 2.01(e) shallspecify the aggregate amount of Registrable Securities to be registered and theintended method of distribution of such securities.

 

(f)            Delayin Filing; Suspension of Registration. If the filing, initial effectiveness or continued use of a DemandRegistration Statement at any time would require the Company to make an AdverseDisclosure, the Company may, upon giving prompt written notice of such actionto the Holders, delay the filing or initial effectiveness of, or suspend useof, the Demand Registration Statement (a “Demand Suspension”); provided,however, that the Company shall not be permitted to exercise a DemandSuspension (i) more than once during any twelve (12)-month period, or (ii) fora period exceeding thirty (30) days on any one occasion.  In the case of a Demand Suspension, theHolders agree to suspend use of the applicable Prospectus in connection withany sale or purchase, or offer to sell or purchase, Registrable Securities,upon receipt of the notice referred to above. The Company shall immediately notify the Holders upon the termination ofany Demand Suspension, amend or supplement the Prospectus, if necessary, so itdoes not contain any untrue statement or omission and furnish to the Holderssuch numbers of copies of the Prospectus as so amended or supplemented as theHolders may reasonably request.  TheCompany agrees, if necessary, to supplement or make amendments to the DemandRegistration Statement, if required by the registration form used by theCompany for the Demand Registration or by the instructions applicable to suchregistration form or by the Securities Act or the rules or regulationspromulgated thereunder or as may reasonably be requested by the DemandingSponsor.

 

(g)           UnderwrittenOffering.  If a Demanding Sponsor sorequests, an offering of Registrable Securities pursuant to a DemandRegistration shall be in the form of an Underwritten Offering, and suchDemanding Sponsor shall have the right to select the managing underwriter orunderwriters to administer the offering; provided that such managingunderwriter or underwriters shall be reasonably acceptable to the Company andthe other Sponsor.

 

(h)           Priorityof Securities Registered Pursuant to Demand Registrations.  If the managing underwriter or underwritersof a proposed Underwritten Offering of the Registrable Securities included in aDemand Registration (or, in the case of a Demand Registration not beingunderwritten, the Sponsors), advise the Board of Directors in writing that, inits or their opinion, the number of securities requested to be included in suchDemand Registration exceeds the number which can be sold in such offeringwithout being likely to have a significant adverse effect on the price, timingor distribution of the securities offered or the market for the securities 

 

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offered, the securities to be included in such DemandRegistration (i) first, shall be allocated prorata amongthe Holders that have requested to participate in such Demand Registrationbased on the relative number of Registrable Securities then held by each suchHolder (provided that any securities thereby allocated to a Holder thatexceed such Holder’s request shall be reallocated among the remainingrequesting Holders in like manner) and (ii) next, and only if all thesecurities referred to in clause (i) have been included, the number ofsecurities that the Company proposes to include in such Registration that, inthe opinion of the managing underwriter or underwriters (or the Sponsors, asthe case may be) can be sold without having such adverse effect.

 

(i)            Inthe event any Holder requests to participate in a registration pursuant to thisSection 2.01 in connection with a distribution of Registrable Securitiesto its partners or members, the registration shall provide for resale by suchpartners or members, if requested by the Holder.

 

SECTION 2.02.      ShelfRegistration.

 

(a)           Filing.  After the Effectiveness Date, as promptly aspracticable following a request by a Sponsor holding, directly or indirectly,in the aggregate, not less than five percent (5%) of the Registrable Securitiesthen outstanding, the Company shall file with the SEC a Shelf RegistrationStatement relating to the offer and sale of all Registrable Securities by theHolders from time to time in accordance with the methods of distributionelected by such Holders and set forth in the Shelf Registration Statement and,as promptly as practicable thereafter, shall use its reasonable best efforts tocause such Shelf Registration Statement to be declared effective under theSecurities Act.  If, on the date of any suchrequest, the Company does not qualify to file a Shelf Registration Statementunder the Securities Act, the provisions of this Section 2.02 shall not apply,and the provisions of Section 2.01 shall apply instead.

 

(b)           ContinuedEffectiveness.  The Company shall useits reasonable best efforts to keep such Shelf Registration Statementcontinuously effective under the Securities Act in order to permit theProspectus forming a part thereof to be usable by Holders until the earlier of (i) thedate as of which all Registrable Securities have been sold pursuant to theShelf Registration Statement or another registration statement filed under theSecurities Act (but in no event prior to the applicable period referred to in Section 4(3) ofthe Securities Act and Rule 174 thereunder) and (ii) the date as ofwhich each of the Holders is permitted to sell its Registrable Securitieswithout Registration pursuant to Rule 144 under the Securities Act withoutvolume limitation or other restrictions on transfer thereunder (such period ofeffectiveness, the “Shelf Period”). Subject to Section 2.02(d), the Company shall not be deemed to haveused its reasonable best efforts to keep the Shelf Registration Statementeffective during the Shelf Period if the Company voluntarily takes any actionor omits to take any action that would result in Holders of RegistrableSecurities covered thereby not being able to offer and sell any RegistrableSecurities pursuant to such Shelf Registration Statement during the ShelfPeriod, unless such action or omission is required by applicable law.

 

(c)           ShelfNotice.  Promptly upon receipt of anyrequest to file a Shelf Registration Statement pursuant to Section 2.02(a) (butin no event more than five (5) Business 

 

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Days thereafter), the Company shall deliver a writtennotice of any such request to all other Holders specifying the amount ofRegistrable Securities to be registered.

 

(d)           Suspensionof Registration.  If the continueduse of such Shelf Registration Statement at any time would require the Companyto make an Adverse Disclosure, the Company may, upon giving at least ten days’prior written notice of such action to the Holders, suspend use of the ShelfRegistration Statement (a “Shelf Suspension”); provided that theCompany shall not be permitted to exercise a Shelf Suspension (i) morethan one time during any twelve (12)-month period, or (ii) for a periodexceeding thirty (30) days on any one occasion. In the case of a Shelf Suspension, the Holders agree to suspend use ofthe applicable Prospectus in connection with any sale or purchase of, or offerto sell or purchase, Registrable Securities, upon receipt of the noticereferred to above.  The Company shallimmediately notify the Holders upon the termination of any Shelf Suspension,amend or supplement the Prospectus, if necessary, so it does not contain anyuntrue statement or omission and furnish to the Holders such numbers of copiesof the Prospectus as so amended or supplemented as the Holders may reasonablyrequest.  The Company agrees, ifnecessary, to supplement or make amendments to the Shelf RegistrationStatement, if required by the registration form used by the Company for theShelf Registration or by the instructions applicable to such registration formor by the Securities Act or the rules or regulations promulgatedthereunder or as may reasonably be requested by the Sponsors.

 

(e)           UnderwrittenOffering.  If a Sponsor holding,directly or indirectly, in the aggregate, not less than five percent (5 %) ofthe Registrable Securities then outstanding so elects, an offering ofRegistrable Securities pursuant to the Shelf Registration Statement shall be inthe form of an Underwritten Offering, and the Company shall amend or supplementthe Shelf Registration Statement for such purpose, such Sponsor shall have theright to select the managing underwriter or underwriters to administer suchoffering; provided that such managing underwriter or underwriters shallbe reasonably acceptable to the Company and the other Sponsor.

 

SECTION 2.03.      PiggybackRegistration.

 

(a)           Participation.  If the Company at any time proposes to file aRegistration Statement under the Securities Act with respect to any offering ofits securities for its own account or for the account of any other Persons (otherthan (i) a Registration under Section 2.01 or 2.02, (ii) aRegistration on Form S-4 or S-8 or any successor form to such Forms or (iii) aRegistration of securities solely relating to an offering and sale to employeesor directors of the Company pursuant to any employee stock plan or otheremployee benefit plan arrangement) (a “Company Public Sale”), then, assoon as practicable (but in no event less than forty-five (45) days prior tothe proposed date of filing of such Registration Statement), the Company shallgive written notice of such proposed filing to the Holders, and such noticeshall offer the Holders the opportunity to Register under such RegistrationStatement such number of Registrable Securities as each such Holder may requestin writing (a “Piggyback Registration”). Subject to Section 2.03(b), the Company shall include in suchRegistration Statement all such Registrable Securities that are requested to beincluded therein within fifteen (15) days after the receipt by such Holders ofany such notice; provided that if at any time after giving writtennotice of its intention to Register any securities and prior to the effectivedate of the Registration Statement filed in 

 

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connection with such Registration, the Company shalldetermine for any reason not to Register or to delay Registration of suchsecurities, the Company shall give written notice of such determination to eachHolder and, thereupon, (i) in the case of a determination not to Register,shall be relieved of its obligation to Register any Registrable Securities inconnection with such Registration (but not from its obligation to pay theRegistration Expenses in connection therewith), without prejudice, however, tothe rights of the Sponsors to request that such Registration be effected as aDemand Registration under Section 2.01, and (ii) in the case of adetermination to delay Registering, in the absence of a request for a DemandRegistration, shall be permitted to delay Registering any RegistrableSecurities, for the same period as the delay in Registering such othersecurities.  If the offering pursuant tosuch Registration Statement is to be underwritten, then each Holder making arequest for a Piggyback Registration pursuant to this Section 2.03(a) must,and the Company shall make such arrangements with the managing underwriter orunderwriters so that each such Holder may, participate in such UnderwrittenOffering.  If the offering pursuant tosuch Registration Statement is to be on any other basis, then each Holdermaking a request for a Piggyback Registration pursuant to this Section 2.03(a) must,and the Company shall make such arrangements so that each such Holder may,participate in such offering on such basis. Each Holder shall be permitted to withdraw all or part of itsRegistrable Securities from a Piggyback Registration at any time prior to theeffectiveness of such Registration Statement.

 

(b)           Priorityof Piggyback Registration.  If themanaging underwriter or underwriters of any proposed Underwritten Offering ofRegistrable Securities included in a Piggyback Registration informs the Companyand the Holders of Registrable Securities in writing that, in its or theiropinion, the number of securities which such Holders and any other Personsintend to include in such offering exceeds the number which can be sold in suchoffering without being likely to have a significant adverse effect on theprice, timing or distribution of the securities offered or the market for thesecurities offered, then the securities to be included in such Registrationshall be (i) first, 100% of the securities that the Company or (subject toSection 2.07) any Person (other than a Holder) exercising a contractualright to demand Registration, as the case may be, proposes to sell, and (ii) second,and only if all the securities referred to in clause (i) have beenincluded, the number of Registrable Securities that, in the opinion of suchmanaging underwriter or underwriters, can be sold without having such adverseeffect, with such number to be allocated prorata among theHolders that have requested to participate in such Registration based on therelative number of Registrable Securities then held by each such Holder (providedthat any securities thereby allocated to a Holder that exceed such Holder’srequest shall be reallocated among the remaining requesting Holders in likemanner) and (iii) third, and only if all of the Registrable Securitiesreferred to in clause (ii) have been included in such Registration, anyother securities eligible for inclusion in such Registration.

 

(c)           NoEffect on Demand Registrations.  NoRegistration of Registrable Securities effected pursuant to a request underthis Section 2.03 shall be deemed to have been effected pursuant toSections 2.01 and 2.02 or shall relieve the Company of its obligations underSections 2.01 or 2.02.

 

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SECTION 2.04.      Black-outPeriods.

 

(a)           Black-outPeriods for Holders.  In the event ofa Company Public Sale of the Company’s equity securities in an UnderwrittenOffering, the Holders agree, if requested by the managing underwriter orunderwriters in such Underwritten Offering, not to effect any public sale ordistribution of any securities (except, in each case, as part of the applicableRegistration, if permitted) that are the same as or similar to those beingRegistered in connection with such Company Public Sale, or any securitiesconvertible into or exchangeable or exercisable for such securities, during theperiod beginning seven (7) days before and ending one hundred eighty (180)days (in the event of the Company’s initial public offering) or ninety (90)days (in the event of any other Company Public Sale) (or, in either case, suchlesser period as may be permitted by the Company or such managing underwriteror underwriters) after, the effective date of the Registration Statement filedin connection with such Registration, to the extent timely notified in writingby the Company or the managing underwriter or underwriters; provided, however,such restrictions shall not apply to (i) securities acquired in the publicmarket subsequent to the initial public offering , (ii) distributions-in-kindto a Holder’s limited partners and (iii) transfers to Affiliates but onlyif such Affiliates agree to be bound by the restrictions herein..

 

(b)           Black-outPeriod for the Company and Others. In the case of a Registration of Registrable Securities pursuant to Section 2.01or 2.02 for an Underwritten Offering, the Company and the Holders agree, ifrequested by the Sponsors or the managing underwriter or underwriters, not toeffect any public sale or distribution of any securities that are the same asor similar to those being Registered, or any securities convertible into orexchangeable or exercisable for such securities, during the period beginningseven (7) days before, and ending ninety (90) days (or such lesser periodas may be permitted by the Sponsors or such managing underwriter orunderwriters) after, the effective date of the Registration Statement filed inconnection with such Registration (or, in the case of an offering under a ShelfRegistration Statement, the date of the closing under the underwritingagreement in connection therewith), to the extent timely notified in writing bythe Sponsors or the managing underwriter or underwriters.  Notwithstanding the foregoing, the Companymay effect a public sale or distribution of securities of the type describedabove and during the periods described above if such sale or distribution ismade pursuant to Registrations on Form S-4 or S-8 or any successor form tosuch Forms or as part of any Registration of securities for offering and saleto employees or directors of the Company pursuant to any employee stock plan orother employee benefit plan arrangement. The Company agrees to use itsreasonable best efforts to obtain from each holder of restricted securities ofthe Company which securities are the same as or similar to the RegistrableSecurities being Registered, or any restricted securities convertible into orexchangeable or exercisable for any of such securities, an agreement not toeffect any public sale or distribution of such securities during any suchperiod referred to in this paragraph, except as part of any such Registration,if permitted.  Without limiting theforegoing (but subject to Section 2.07), if after the date hereof theCompany grants any Person (other than a Holder) any rights to demand orparticipate in a Registration, the Company agrees that the agreement withrespect thereto shall include such Person’s agreement to comply with anyblack-out period required by this Section as if it were the Companyhereunder.

 

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SECTION 2.05.      RegistrationProcedures.

 

(a)           Inconnection with the Company’s Registration obligations under Sections 2.01,2.02 and 2.03, the Company shall use its reasonable best efforts to effect suchRegistration to permit the sale of such Registrable Securities in accordancewith the intended method or methods of distribution thereof as expeditiously asreasonably practicable, and in connection therewith the Company shall:

 

(i)            preparethe required Registration Statement including all exhibits and financialstatements required under the Securities Act to be filed therewith, and beforefiling a Registration Statement or Prospectus, or any amendments or supplementsthereto, (x) furnish to the underwriters, if any, and to ParticipatingHolders, copies of all documents prepared to be filed, which documents shall besubject to the review of such underwriters and such Holders and theirrespective counsel and (y) except in the case of a Registration under Section 2.03,not file any Registration Statement or Prospectus or amendments or supplementsthereto to which the Sponsors or the underwriters, if any, shall reasonablyobject;

 

(ii)           assoon as possible (in the case of a Demand Registration, no later than thirty(30) days after a request for a Demand Registration) file with the SEC aRegistration Statement relating to the Registrable Securities including allexhibits and financial statements required by the SEC to be filed therewith,and use its reasonable best efforts to cause such Registration Statement tobecome effective under the Securities Act as soon as practicable;

 

(iii)          prepareand file with the SEC such pre- and post-effective amendments to suchRegistration Statement and supplements to the Prospectus as may be(x) reasonably requested by a Sponsor, (y) reasonably requested byany other Participating Holder (to the extent such request relates toinformation relating to such Holder), or (z) necessary to keep suchRegistration effective for the period of time required by this Agreement, andcomply with provisions of the applicable securities laws with respect to thesale or other disposition of all securities covered by such RegistrationStatement during such period in accordance with the intended method or methodsof disposition by the sellers thereof set forth in such Registration Statement;

 

(iv)          notifythe Participating Holders and the managing underwriter or underwriters, if any,and (if requested) confirm such advice in writing and provide copies of therelevant documents, as soon as reasonably practicable after notice thereof isreceived by the Company (a) when the applicable Registration Statement orany amendment thereto has been filed or becomes effective, and when theapplicable Prospectus or any amendment or supplement to such Prospectus hasbeen filed, (b) of any written comments by the SEC or any request by theSEC or any other federal or state governmental authority for amendments orsupplements to such Registration Statement or such Prospectus or for additionalinformation, (c) of the issuance by the SEC of any stop order suspendingthe effectiveness of such Registration Statement or any order by the SEC or anyother regulatory authority preventing or suspending the use of any preliminaryor final Prospectus or the initiation or threatening of any proceedings for 

 

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such purposes, (d) if,at any time, the representations and warranties of the Company in anyapplicable underwriting agreement cease to be true and correct in all materialrespects, and (e) of the receipt by the Company of any notification withrespect to the suspension of the qualification of the Registrable Securitiesfor offering or sale in any jurisdiction or the initiation or threatening ofany proceeding for such purpose;

 

(v)           promptlynotify the Participating Holders and the managing underwriter or underwriters,if any, when the Company becomes aware of the happening of any event as aresult of which the applicable Registration Statement or the Prospectusincluded in such Registration Statement (as then in effect) contains any untruestatement of a material fact or omits to state a material fact necessary tomake the statements therein (in the case of such Prospectus and any preliminaryProspectus, in light of the circumstances under which they were made) not misleadingor, if for any other reason it shall be necessary during such time period toamend or supplement such Registration Statement or Prospectus in order tocomply with the Securities Act and, in either case as promptly as reasonablypracticable thereafter, prepare and file with the SEC, and furnish withoutcharge to the Participating Holders and the managing underwriter orunderwriters, if any, an amendment or supplement to such Registration Statementor Prospectus which shall correct such misstatement or omission or effect suchcompliance;

 

(vi)          useits reasonable best efforts to prevent, or obtain the withdrawal of, any stoporder or other order suspending the use of any preliminary or final Prospectus;

 

(vii)         promptlyincorporate in a Prospectus supplement or post-effective amendment suchinformation as the managing underwriter or underwriters and the Sponsors agreeshould be included therein relating to the plan of distribution with respect tosuch Registrable Securities; and make all required filings of such Prospectussupplement or post-effective amendment as soon as reasonably practicable afterbeing notified of the matters to be incorporated in such Prospectus supplementor post-effective amendment;

 

(viii)        furnishto each Participating Holder and each underwriter, if any, without charge, asmany conformed copies as such Holder or underwriter may reasonably request ofthe applicable Registration Statement and any amendment or post-effectiveamendment thereto, including financial statements and schedules, all documentsincorporated therein by reference and all exhibits (including thoseincorporated by reference);

 

(ix)           deliverto each Participating Holder and each underwriter, if any, without charge, asmany copies of the applicable Prospectus (including each preliminaryprospectus) and any amendment or supplement thereto as such Holder orunderwriter may reasonably request (it being understood that the Companyconsents to the use of such Prospectus or any amendment or supplement theretoby such Holder and the underwriters, if any, in connection with the offeringand sale of the Registrable Securities covered by such Prospectus or anyamendment or supplement thereto) and such other documents as such Holder orunderwriter may reasonably request in order to facilitate the disposition ofthe Registrable Securities by such Holder or underwriter;

 

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(x)            onor prior to the date on which the applicable Registration Statement is declaredeffective, use its reasonable best efforts to register or qualify, andcooperate with the Participating Holders, the managing underwriter orunderwriters, if any, and their respective counsel, in connection with theregistration or qualification of such Registrable Securities for offer and saleunder the securities or “Blue Sky” laws of each state and other jurisdiction ofthe United States as any Participating Holder or managing underwriter orunderwriters, if any, or their respective counsel reasonably request in writingand do any and all other acts or things reasonably necessary or advisable tokeep such registration or qualification in effect for such period as requiredby Section 2.01(d) or Section 2.02(b), whichever is applicable, providedthat the Company shall not be required to qualify generally to do business inany jurisdiction where it is not then so qualified or to take any action whichwould subject it to taxation or general service of process in any suchjurisdiction where it is not then so subject;

 

(xi)           cooperatewith the Participating Holders and the managing underwriter or underwriters, ifany, to facilitate the timely preparation and delivery of certificatesrepresenting Registrable Securities to be sold and not bearing any restrictivelegends; and enable such Registrable Securities to be in such denominations andregistered in such names as the managing underwriters may request at least twobusiness days prior to any sale of Registrable Securities to the underwriters;

 

(xii)          useits reasonable best efforts to cause the Registrable Securities covered by theapplicable Registration Statement to be registered with or approved by suchother governmental agencies or authorities as may be necessary to enable theseller or sellers thereof or the underwriter or underwriters, if any, toconsummate the disposition of such Registrable Securities;

 

(xiii)         notlater than the effective date of the applicable Registration Statement, providea CUSIP number for all Registrable Securities and provide the applicabletransfer agent with printed certificates for the Registrable Securities whichare in a form eligible for deposit with The Depository Trust Company;

 

(xiv)        makesuch representations and warranties to the Participating Holders and theunderwriters or agents, if any, in form, substance and scope as are customarilymade by issuers in secondary underwritten public offerings;

 

(xv)         enterinto such customary agreements (including underwriting and indemnificationagreements) and take all such other actions as the Sponsors or the managingunderwriter or underwriters, if any, reasonably request in order to expedite orfacilitate the registration and disposition of such Registrable Securities;

 

(xvi)        obtainfor delivery to the Participating Holders and to the underwriter orunderwriters, if any, an opinion or opinions from counsel for the Company datedthe effective date of the Registration Statement or, in the event of anUnderwritten Offering, the date of the closing under the underwritingagreement, in customary form, scope and substance, which opinions shall bereasonably satisfactory to such Holders or underwriters, as the case may be,and their respective counsel;

 

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(xvii)       inthe case of an Underwritten Offering, obtain for delivery to the Company andthe managing underwriter or underwriters, with copies to the ParticipatingHolders, a cold comfort letter from the Company’s independent certified publicaccountants in customary form and covering such matters of the type customarilycovered by cold comfort letters as the managing underwriter or underwritersreasonably request, dated the date of execution of the underwriting agreementand brought down to the closing under the underwriting agreement;

 

(xviii)      cooperatewith each Participating Holder and each underwriter, if any, participating inthe disposition of such Registrable Securities and their respective counsel inconnection with any filings required to be made with the NASD;

 

(xix)         useits reasonable best efforts to comply with all applicable securities laws andmake available to its security holders, as soon as reasonably practicable, anearnings statement satisfying the provisions of Section 11(a) of theSecurities Act and the rules and regulations promulgated thereunder;

 

(xx)          provideand cause to be maintained a transfer agent and registrar for all RegistrableSecurities covered by the applicable Registration Statement from and after adate not later than the effective date of such Registration Statement;

 

(xxi)         useits best efforts to cause all Registrable Securities covered by the applicableRegistration Statement to be listed on each securities exchange on which any ofthe Company’s securities are then listed or quoted and on each inter-dealerquotation system on which any of the Company’s securities are then quoted;

 

(xxii)        makeavailable upon reasonable notice at reasonable times and for reasonable periodsfor inspection by the Sponsors, by any underwriter participating in anydisposition to be effected pursuant to such Registration Statement and by anyattorney, accountant or other agent retained by the Sponsors or any suchunderwriter, all pertinent financial and other records, pertinent corporatedocuments and properties of the Company, and cause all of the Company’s officers,directors and employees and the independent public accountants who havecertified its financial statements to make themselves available to discuss thebusiness of the Company and to supply all information reasonably requested byany such Person in connection with such Registration Statement as shall benecessary to enable them to exercise their due diligence responsibility; providedthat any such Person gaining access to information regarding the Companypursuant to this Section 2.05(a)(xxii) shall agree to hold in strictconfidence and shall not make any disclosure or use any information regardingthe Company that the Company determines in good faith to be confidential, andof which determination such Person is notified, unless (w) the release of suchinformation is requested or required (by deposition, interrogatory, requestsfor information or documents by a governmental entity, subpoena or similarprocess), (x) such information is or becomes publicly known other than througha breach of this or any other agreement of which such Person has knowledge, (y)such information is or becomes available to such Person on a non-confidentialbasis from a source other than the Company or (z) such information isindependently developed by such Person; and

 

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(xxiii)       inthe case of an Underwritten Offering, cause the senior executive officers ofthe Company to participate in the customary “road show” presentations that maybe reasonably requested by the managing underwriter or underwriters in any suchUnderwritten Offering and otherwise to facilitate, cooperate with, andparticipate in each proposed offering contemplated herein and customary sellingefforts related thereto.

 

(b)           TheCompany may require each Participating Holder to furnish to the Company suchinformation regarding the distribution of such securities and such otherinformation relating to such Holder and its ownership of Registrable Securitiesas the Company may from time to time reasonably request in writing.  Each Participating Holder agrees to furnishsuch information to the Company and to cooperate with the Company as reasonablynecessary to enable the Company to comply with the provisions of thisAgreement.

 

(c)           EachParticipating Holder agrees that, upon receipt of any notice from the Companyof the happening of any event of the kind described in Section 2.05(a)(v),such Holder will forthwith discontinue disposition of Registrable Securitiespursuant to such Registration Statement until such Holder’s receipt of thecopies of the supplemented or amended Prospectus contemplated by Section 2.05(a)(v),or until such Holder is advised in writing by the Company that the use of theProspectus may be resumed, and if so directed by the Company, such Holder shalldeliver to the Company (at the Company’s expense) all copies, other thanpermanent file copies then in such Holder’s possession, of the Prospectuscovering such Registrable Securities current at the time of receipt of suchnotice.  In the event the Company shallgive any such notice, the period during which the applicable RegistrationStatement is required to be maintained effective shall be extended by thenumber of days during the period from and including the date of the giving ofsuch notice to and including the date when each seller of RegistrableSecurities covered by such Registration Statement either receives the copies ofthe supplemented or amended Prospectus contemplated by Section 2.05(a)(v) oris advised in writing by the Company that the use of the Prospectus may beresumed.

 

(d)           Holdersmay seek to register different types of Registrable Securities simultaneously,and the Company shall use its reasonable best efforts to effect suchRegistration and sale in accordance with the intended method or methods ofdisposition specified by such Holders.

 

SECTION 2.06.      UnderwrittenOfferings.

 

(a)           Demandand Shelf Registrations.  Ifrequested by the underwriters for any Underwritten Offering requested by theSponsors pursuant to a Registration under Section 2.01 or Section 2.02,the Company shall enter into an underwriting agreement with such underwritersfor such offering, such agreement to be reasonably satisfactory in substanceand form to the Company, the Sponsors and the underwriters, and to contain suchrepresentations and warranties by the Company and such other terms as aregenerally prevailing in agreements of that type, including indemnities no lessfavorable to the recipient thereof than those provided in Section 2.09.  The Participating Holders****shall cooperate with the Company in thenegotiation of such underwriting agreement and shall give consideration to thereasonable suggestions of the Company regarding the form thereof.  Such Holders****shall be parties to such underwriting agreement, which underwritingagreement shall (i) contain such representations and warranties 

 

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by, and the other agreements on the part of, theCompany to and for the benefit of such Holders****as are customarily made by issuers to selling stockholders insecondary underwritten public offerings and (ii) provide that any or allof the conditions precedent to the obligations of such underwriters under suchunderwriting agreement also shall be conditions precedent to the obligationsof  such Holders.  Such Holders shall not be required to makeany representations or warranties to or agreements with the Company or theunderwriters other than representations, warranties or agreements regardingsuch Holders, such Holder’s title to the Registrable Securities, such Holder’sintended method of distribution and any other representations required to bemade by such Holder under applicable law, and the aggregate amount of theliability of such Holder shall not exceed such Holder’s net proceeds from suchUnderwritten Offering.

 

(b)           PiggybackRegistrations.  If the Companyproposes to register any of its securities under the Securities Act ascontemplated by Section 2.03 and such securities are to be distributed inan Underwritten Offering through one or more underwriters, the Company shall,if requested by any Holder pursuant to Section 2.03 and subject to theprovisions of Section 2.03(b), use its reasonable best efforts to arrangefor such underwriters to include on the same terms and conditions that apply tothe other sellers in such Registration all the Registrable Securities to beoffered and sold by such Holder among the securities of the Company to bedistributed by such underwriters in such Registration.  The Participating Holders shall be parties tothe underwriting agreement between the Company and such underwriters, whichunderwriting agreement shall (i) contain such representations andwarranties by, and the other agreements on the part of, the Company to and forthe benefit of such Holders as are customarily made by issuers to sellingstockholders in secondary underwritten public offerings and (ii) providethat any or all of the conditions precedent to the obligations of suchunderwriters under such underwriting agreement also shall be conditionsprecedent to the obligations of such Holders. Any such Holder shall not be required to make any representations orwarranties to, or agreements with the Company or the underwriters other thanrepresentations, warranties or agreements regarding such Holder; such Holder’stitle to the Registrable Securities and such Holder’s intended method ofdistribution or any other representations required to be made by such Holderunder applicable law, and the aggregate amount of the liability of such Holdershall not exceed such Holder’s net proceeds from such Underwritten Offering.

 

(c)           Participationin Underwritten Registrations. Subject to provisions of Sections 2.06(a) and (b) above, noPerson may participate in any Underwritten Offering hereunder unless suchPerson (i) agrees to sell such Person’s securities on the basis providedin any underwriting arrangements approved by the Persons entitled to approvesuch arrangements and (ii) completes and executes all questionnaires,powers of attorney, indemnities, underwriting agreements and other documentsrequired under the terms of such underwriting arrangements.

 

(d)           Priceand Underwriting Discounts.  In thecase of an Underwritten Offering under Section 2.01 or 2.02, the price,underwriting discount and other financial terms for the Registrable Securitiesshall be determined by the Demanding Sponsor (or, in the case of a Shelf Registration, the Sponsor sellingRegistrable Securities under the Shelf Registration Statement).  In addition, in the case of any UnderwrittenOffering, each of the Holders may withdraw their request to participate in theregistration pursuant to Section 2.01, 2.02 or 2.03 after being advised ofsuch price, discount and other terms and shall not be required to enter intoany agreements or documentation that would require otherwise.

 

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SECTION 2.07.      NoInconsistent Agreements; Additional Rights. The Company shall not hereafter enter into, and is not currently a partyto, any agreement with respect to its securities that is inconsistent with therights granted to the Holders by this Agreement.  Without the consent of the Sponsors, theCompany shall not enter into any agreement granting registration or similarrights to any Person.

 

SECTION 2.08.      RegistrationExpenses.  All expenses incident tothe Company’s performance of or compliance with this Agreement shall be paid bythe Company, including (i) all registration and filing fees, and any otherfees and expenses associated with filings required to be made with the SEC orthe NASD, (ii) all fees and expenses in connection with compliance withany securities or “Blue Sky” laws, (iii) all printing, duplicating, wordprocessing, messenger, telephone, facsimile and delivery expenses (includingexpenses of printing certificates for the Registrable Securities in a formeligible for deposit with The Depository Trust Company and of printingprospectuses), (iv) all fees and disbursements of counsel for the Companyand of all independent certified public accountants of the Company (includingthe expenses of any special audit and cold comfort letters required by orincident to such performance), (v) Securities Act liability insurance orsimilar insurance if the Company so desires or the underwriters so require inaccordance with then-customary underwriting practice, (vi) all fees andexpenses incurred in connection with the listing of the Registrable Securitieson any securities exchange or quotation of the Registrable Securities on anyinter-dealer quotation system, (vii) all applicable rating agency feeswith respect to the Registrable Securities, (viii) all reasonable fees anddisbursements of legal counsel selected by the Demanding Sponsor  (or, in the case of a Shelf Registration, theSponsor  selling Registrable Securitiesunder the Shelf Registration Statement), (ix) all fees and expenses ofaccountants selected by the Demanding Sponsor (or, in the case of a Shelf Registration, the Investor sellingRegistrable Securities under the Shelf Registration Statement), (x) anyreasonable fees and disbursements of underwriters customarily paid by issuersor sellers of securities, (xi) all fees and expenses of any specialexperts or other Persons retained by the Company in connection with any Registration,(xii) all of the Company’s internal expenses (including all salaries andexpenses of its officers and employees performing legal or accounting duties)and (xiii) all expenses related to the “road-show” for any underwrittenoffering, including all travel, meals and lodging.  All such expenses are referred to herein as “RegistrationExpenses.”  The Company shall not berequired to pay any fees and disbursements to underwriters not customarily paidby the issuers of securities in a secondary offering, including underwritingdiscounts and commissions and transfer taxes, if any, attributable to the saleof Registrable Securities.

 

SECTION 2.09.      Indemnification.

 

(a)           Indemnificationby the Company.  The Company agreesto indemnify and hold harmless, to the full extent permitted by law, eachHolder, each member, limited or general partner thereof, each member, limitedor general partner of each such member, limited or general partner, each oftheir respective Affiliates, officers, directors, shareholders, employees,advisors, and agents and each Person who controls (within the meaning of theSecurities Act or the Exchange Act) such Persons and each of their respectiveRepresentatives from and against any and all losses, penalties, judgments,suits, costs, claims, damages, liabilities and expenses, joint or several(including reasonable costs of investigation and legal expenses) (each, a “Loss”and collectively “Losses”) arising out of or based upon (i) anyuntrue or alleged untrue statement of a 

 

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material fact contained in any Registration Statementunder which such Registrable Securities were Registered under the SecuritiesAct (including any final, preliminary or summary Prospectus contained thereinor any amendment thereof or supplement thereto or any documents incorporated byreference therein) or any other disclosure document produced by or on behalf ofthe Company or any of its subsidiaries including, without limitation, reportsand other documents filed under the Exchange Act, (ii) any omission oralleged omission to state therein a material fact required to be stated thereinor necessary to make the statements therein (in the case of a Prospectus orpreliminary Prospectus, in light of the circumstances under which they weremade) not misleading or (iii) any actions or inactions or proceedings inrespect of the foregoing whether or not such indemnified party is a partythereto; provided, that the Company shall not be liable to anyparticular indemnified party (A) to the extent that any such Loss arisesout of or is based upon an untrue statement or alleged untrue statement oromission or alleged omission made in any such Registration Statement or otherdocument in reliance upon and in conformity with written information furnishedto the Company by such indemnified party expressly for use in the preparationthereof or (B) to the extent that any such Loss arises out of or is basedupon an untrue statement or omission in a preliminary Prospectus relating toRegistrable Securities, if a Prospectus (as then amended or supplemented) thatwould have cured the defect was furnished to the indemnified party from whomthe Person asserting the claim giving rise to such Loss purchased RegistrableSecurities at least five (5) days prior to the written confirmation of thesale of the Registrable Securities to such Person and a copy of such Prospectus(as amended and supplemented) was not sent or given by or on behalf of suchindemnified party to such Person at or prior to the written confirmation of thesale of the Registrable Securities to such Person.  This indemnity shall be in addition to anyliability the Company may otherwise have. Such indemnity shall remain in full force and effect regardless of anyinvestigation made by or on behalf of such Holder or any indemnified party andshall survive the transfer of such securities by such Holder.  The Company shall also indemnifyunderwriters, selling brokers, dealer managers and similar securities industryprofessionals participating in the distribution, their officers and directorsand each Person who controls such Persons (within the meaning of the SecuritiesAct and the Exchange Act) to the same extent as provided above with respect tothe indemnification of the indemnified parties.

 

(b)           Indemnificationby the Participating Holders.  EachParticipating Holder agrees (severally and not jointly) to indemnify and holdharmless, to the fullest extent permitted by law, the Company, its directorsand officers and each Person who controls the Company (within the meaning ofthe Securities Act or the Exchange Act) from and against any Losses resultingfrom (i) any untrue statement of a material fact in any RegistrationStatement under which such Registrable Securities were Registered under theSecurities Act (including any final, preliminary or summary Prospectuscontained therein or any amendment thereof or supplement thereto or anydocuments incorporated by reference therein), or (ii) any omission tostate therein a material fact required to be stated therein or necessary tomake the statements therein (in the case of a Prospectus or preliminaryProspectus, in light of the circumstances under which they were made) notmisleading, to the extent, but only to the extent, that such untrue statementor omission is contained in any information furnished in writing by such Holderto the Company specifically for inclusion in such Registration Statement andhas not been corrected in a subsequent writing prior to or concurrently withthe sale of the Registrable Securities to the Person asserting the claim.  In no event shall the liability of suchHolder hereunder be greater in amount than the dollar amount of the netproceeds received by such Holder under the sale of 

 

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Registrable Securities giving rise to suchindemnification obligation.  The Companyshall be entitled to receive indemnities from underwriters, selling brokers,dealer managers and similar securities industry professionals participating inthe distribution, to the same extent as provided above (with appropriatemodification) with respect to information furnished in writing by such Personsspecifically for inclusion in any Prospectus or Registration Statement.

 

(c)           Conductof Indemnification Proceedings.  AnyPerson entitled to indemnification hereunder shall (i) give prompt writtennotice to the indemnifying party of any claim with respect to which it seeksindemnification (provided that any delay or failure to so notify theindemnifying party shall relieve the indemnifying party of its obligationshereunder only to the extent, if at all, that it is actually and materiallyprejudiced by reason of such delay or failure) and (ii) permit suchindemnifying party to assume the defense of such claim with counsel reasonablysatisfactory to the indemnified party; provided that any Person entitledto indemnification hereunder shall have the right to select and employ separatecounsel and to participate in the defense of such claim, but the fees and expensesof such counsel shall be at the expense of such Person unless (A) theindemnifying party has agreed in writing to pay such fees or expenses, (B) theindemnifying party shall have failed to assume the defense of such claim withina reasonable time after receipt of notice of such claim from the Personentitled to indemnification hereunder and employ counsel reasonablysatisfactory to such Person, (C) the indemnified party has reasonablyconcluded (based upon advice of its counsel) that there may be legal defensesavailable to it or other indemnified parties that are different from or inaddition to those available to the indemnifying party, or (D) in thereasonable judgment of any such Person (based upon advice of its counsel) aconflict of interest may exist between such Person and the indemnifying partywith respect to such claims (in which case, if the Person notifies theindemnifying party in writing that such Person elects to employ separatecounsel at the expense of the indemnifying party, the indemnifying party shallnot have the right to assume the defense of such claim on behalf of suchPerson).  If the indemnifying partyassumes the defense, the indemnifying party shall not have the right to settlesuch action without the consent of the indemnified party.  No indemnifying party shall consent to entryof any judgment or enter into any settlement which does not include as anunconditional term thereof the giving by the claimant or plaintiff to suchindemnified party of an unconditional release from all liability in respect tosuch claim or litigation without the prior written consent of such indemnifiedparty.  If such defense is not assumed bythe indemnifying party, the indemnifying party will not be subject to anyliability for any settlement made without its prior written consent, but suchconsent may not be unreasonably withheld. It is understood that the indemnifying party or parties shall not,except as specifically set forth in this Section 2.09(c), in connectionwith any proceeding or related proceedings in the same jurisdiction, be liablefor the reasonable fees, disbursements or other charges of more than oneseparate firm admitted to practice in such jurisdiction at any one time unless(x) the employment of more than one counsel has been authorized in writing bythe indemnifying party or parties, (y) an indemnified party has reasonablyconcluded (based on the advice of counsel) that there may be legal defensesavailable to it that are different from or in addition to those available to theother indemnified parties or (z) a conflict or potential conflict exists or mayexist (based upon advice of counsel to an indemnified party) between suchindemnified party and the other indemnified parties, in each of which cases theindemnifying party shall be obligated to pay the reasonable fees and expensesof such additional counsel or counsels.

 

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(d)           Contribution.        Iffor any reason the indemnification provided for in paragraphs (a) and (b) ofthis Section 2.09 is unavailable to an indemnified party or insufficientin respect of any Losses referred to therein, then the indemnifying party shallcontribute to the amount paid or payable by the indemnified party as a resultof such Loss (i) in such proportion as is appropriate to reflect therelative fault of the indemnifying party on the one hand and the indemnifiedparty or parties on the other hand in connection with the acts, statements oromissions that resulted in such losses, as well as any other relevant equitableconsiderations.  In connection with anyRegistration Statement filed with the SEC by the Company, the relative fault ofthe indemnifying party on the one hand and the indemnified party on the otherhand shall be determined by reference to, among other things, whether anyuntrue or alleged untrue statement of a material fact or the omission oralleged omission to state a material fact relates to information supplied bythe indemnifying party or by the indemnified party and the parties’ relativeintent, knowledge, access to information and opportunity to correct or preventsuch statement or omission.  The partieshereto agree that it would not be just or equitable if contribution pursuant tothis Section 2.09(d) were determined by prorata allocationor by any other method of allocation that does not take account of theequitable considerations referred to in this Section 2.09(d).  No Person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of theSecurities Act) shall be entitled to contribution from any Person who was notguilty of such fraudulent misrepresentation. The amount paid or payable by an indemnified party as a result of theLosses referred to in Sections 2.09(a) and 2.09(b) shall be deemed toinclude, subject to the limitations set forth above, any legal or otherexpenses reasonably incurred by such indemnified party in connection withinvestigating or defending any such action or claim.  Notwithstanding the provisions of this Section 2.09(d),in connection with any Registration Statement filed by the Company, aParticipating Holder shall not be required to contribute any amount in excessof the dollar amount of the net proceeds received by such Holder under the saleof Registrable Securities giving rise to such contribution obligation.  If indemnification is available under this Section 2.09,the indemnifying parties shall indemnify each indemnified party to the fullextent provided in Sections 2.09(a) and 2.09(b) hereof without regardto the provisions of this Section 2.09(d). The remedies provided for in this Section 2.09 are not exclusiveand shall not limit any rights or remedies which may otherwise be available toany indemnified party at law or in equity.

 

SECTION 2.10.      Rules 144and 144A and Regulation S.  TheCompany covenants that it will file the reports required to be filed by itunder the Securities Act and the Exchange Act and the rules andregulations adopted by the SEC thereunder (or, if the Company is not requiredto file such reports, it will, upon the reasonable request of the Sponsors,make publicly available such necessary information for so long as necessary topermit sales pursuant to Rules 144, 144A or Regulation S under theSecurities Act), and it will take such further action as the Sponsors mayreasonably request, all to the extent required from time to time to enable theSponsors to sell Registrable Securities without Registration under theSecurities Act within the limitation of the exemptions provided by (i) Rules 144,144A or Regulation S under the Securities Act, as such Rules may beamended from time to time, or (ii) any similar rule or regulationhereafter adopted by the SEC.  Upon thereasonable request of a Holder, the Company will deliver to such Holder awritten statement as to whether it has complied with such requirements and, ifnot, the specifics thereof.

 

21

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ARTICLE IIIMISCELLANEOUS

 

SECTION 3.01.      Term.  This Agreement shall terminate upon the laterof the expiration of the Shelf Period and such time as there are no RegistrableSecurities, except for the provisions of Sections 2.09 and 2.10 and all of thisArticle III, which shall survive any such termination.

 

SECTION 3.02.      InjunctiveRelief.  It is hereby agreed andacknowledged that it will be impossible to measure in money the damage thatwould be suffered if the parties fail to comply with any of the obligationsherein imposed on them and that in the event of any such failure, an aggrievedPerson will be irreparably damaged and will not have an adequate remedy atlaw.  Any such Person shall, therefore,be entitled (in addition to any other remedy to which it may be entitled in lawor in equity) to injunctive relief, including specific performance, to enforcesuch obligations, and if any action should be brought in equity to enforce anyof the provisions of this Agreement, none of the parties hereto shall raise thedefense that there is an adequate remedy at law.

 

SECTION 3.03.      Attorneys’Fees.  In any action or proceeding broughtto enforce any provision of this Agreement or where any provision hereof isvalidly asserted as a defense, the successful party shall, to the extentpermitted by applicable law, be entitled to recover reasonable attorneys’ feesin addition to any other available remedy.

 

SECTION 3.04.      Notices.  Unless otherwise specified herein, allnotices and other communications authorized or required to be given pursuant tothis Agreement shall be in writing and shall be given or made (and shall bedeemed to have been duly given or made upon receipt) by personal hand-delivery,by facsimile transmission, by electronic mail, by mailing the same in a sealedenvelope, registered first-class mail, postage prepaid, return receiptrequested, or by air courier guaranteeing overnight delivery, sent to thePerson at the address given for such Person below or such other address as suchPerson may specify by notice to the Company:

 

To theCompany with a copy (which shall not constitute notice) to the Sponsors:

 

Newton Acquisition, Inc.One Marcus Square

1618 Main Street

Dallas, TX 75201

Telephone: 214.741.6911

 

To the Sponsors:Texas Pacific Group301 Commerce StreetSuite 3300Fort Worth, Texas 76102Attention:  David A. SpuriaTelephone:  817.871.4000Fax:  817.871.4088

 

22

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WarburgPincus LLC

466 Lexington Avenue

New York, NY  10017

Attention: Kewsong Leeand Scott A. Arenare

Telephone: 212.878.0600

Fax: 212.878.9100

 

with a copy (which shall not constitute notice) to:

 

Cleary,Gottlieb, Steen & Hamilton LLPOne Liberty PlazaNew York, NY  10006Attention:  David Leinwand, Esq.Telephone:  212.225.2000Fax:  212.225.3999

 

Willkie Farr &Gallagher LLP

787 Seventh Avenue

New York, NY  10019-6099

Attention: Holly K.Youngwood, Esq. and Steven J. Gartner, Esq.

Telephone:  212.728.8000

Fax:212.728.8111

 

To the Holders:

 

Texas Pacific Group301 Commerce StreetSuite 3300Fort Worth, Texas 76102Attention:  David A. SpuriaTelephone:  817.871.4000Fax:  817.871.4088

 

Warburg Pincus LLC

466 Lexington Avenue

New York, NY  10017

Attention: Kewsong Leeand Scott A. Arenare

Telephone: 212.878.0600

Fax:212.878.9100

 

23

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DLJ Merchant Banking III, Inc.

Eleven Madison Avenue

New York, NY 10010

Attention: Steven Rattnerand Mark Edwards

Telephone:  212.325.2000

 

with a copy (which shallnot constitute notice) to:

 

Cleary,Gottlieb, Steen & Hamilton LLPOne Liberty PlazaNew York, NY  10006Attention:  David Leinwand, Esq.Telephone:  212.225.2000Fax:  212.225.3999

 

Willkie Farr &Gallagher LLP

787 Seventh Avenue

New York, NY  10019-6099

Attention: Holly K.Youngwood, Esq. and Steven J. Gartner, Esq.

Telephone:  212.728.8000

Fax: 212.728.8111

 

Weil,Gotshal & Manges LLP767 Fifth AvenueNew York, New York 10153Attention:  Douglas P. Warner, Esq.Telephone:  212.310.8000Fax:  212.310.8007

 

SECTION 3.05.      Amendment.  Any provision of this Agreement may beamended if, and only if, such amendment is in writing and signed by theSponsors; provided that (a) any amendment that would have amaterial adverse effect on a Holder shall require the written consent of thatHolder and (b) this Section 3.05 may not be amended without the priorwritten consent of all of the Holders.

 

SECTION 3.06.      Successors,Assigns and Transferees.  Each partymay assign all or a portion of its rights hereunder to any Person to which suchparty transfers its ownership of all or any of its Registrable Securities andany Person that acquires Registrable Securities pursuant to the terms of theHolding LLC Agreement (collectively, “Permitted Transferees”).

 

SECTION 3.07.      BindingEffect.  Except as otherwise providedin this Agreement, the terms and provisions of this Agreement shall be bindingon and inure to the benefit of each of the parties hereto and their respectivesuccessors.

 

SECTION 3.08.      ThirdParties.  Nothing in this Agreement,express or implied, is intended or shall be construed to confer upon any Personnot a party hereto (other 

 

24

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than each other Person entitled to indemnity orcontribution under Section 2.09) any right, remedy or claim under or byvirtue of this Agreement.

 

SECTION 3.09.      GoverningLaw; Jurisdiction.  THIS AGREEMENTSHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEWYORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.  ANY ACTION OR PROCEEDING AGAINST THE PARTIESRELATING IN ANY WAY TO THIS AGREEMENT MAY BE BROUGHT AND ENFORCEDEXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR (TO THE EXTENT SUBJECTMATTER JURISDICTION EXISTS THEREFOR) THE U.S. DISTRICT COURT FOR THE SOUTHERNDISTRICT OF NEW YORK, AND THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OFBOTH SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING.

 

SECTION 3.10.      Severability.  If any provision of this Agreement shall beheld to be invalid, illegal or unenforceable, the validity, legality andenforceability of the remaining provisions shall not in any way be affected orimpaired thereby.

 

SECTION 3.11.      Counterparts.  This Agreement may be executed in one or morecounterparts, each of which shall be deemed an original, and all of which shallconstitute one and the same agreement.

 

SECTION 3.12.      Headings.  The heading references herein and in the tableof contents hereto are for convenience purposes only, do not constitute a partof this Agreement and shall not be deemed to limit or affect any of theprovisions hereof.

 

25

----

 

INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the dayand year first above written.

 

 
|   | NEWTON  ACQUISITION, INC.            |
|--------|--------------------------------------|
|   |                                 |
|   | By:                                  | /s/ David A. Spuria |   |
|   | Name:                                | David A. Spuria |
|   | Title:                               | Vice President |
|   |                                 |
|   |                                 |
|   | NEWTON ACQUISITION  MERGER SUB, INC. |
|   |                                 |
|   | By:                                  | /s/ David A. Spuria |   |
|   | Name:                                | David A. Spuria |
|   | Title:                               | Vice President |
|        |                                      |  |  |  |

 

[Registration RightsAgreement]

 

----

 
|   | TPG PARTNERS IV, L.P.       |
|--------|-----------------------------|
|   |                        |
|   | By:                         | TPG GenPar 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 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 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 |
|        |                             |  |  |  |

 

[Registration RightsAgreement]

 

----

 
|   | 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: | Partner |   |
|   |                                                    |
|   |                                                    |
|   | WARBURG PINCUS NETHERLANDS  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: | Partner |   |
|   |                                                    |
|   |                                                    |
|   | 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: | Partner |   |

 

[Registration RightsAgreement]

 

----

 
|   | 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 |
|        |                                                 |  |  |  |

 

[Registration RightsAgreement]

 

----

 
|   | **DLJ MERCHANT BANKING PARTNERS III,**                                                                                                                                 |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   | **L.P.**                                                                                                                                                               |
|   | By: DLJ Merchant  Banking III, Inc., its Managing                                                                                                                 |
|   | General Partner                                                                                                                                                        |
|   |                                                                                                                                                                   |
|   |                                                                                                                                                                   |
|   | By:                                                                                                                                                                    | /s/ George R. Hornig |   |
|   |                                                                                                                                                                   | Name: George R.  Hornig |
|   |                                                                                                                                                                   | Title: Managing  Director |
|   |                                                                                                                                                                   |   |
|   | DLJ MERCHANT BANKING III, INC., as  Advisory General Partner on behalf of                                                                                              |
|   | **DLJ  OFFSHORE PARTNERS III-1, C.V.**and as  attorney-in-fact for DLJ Merchant Banking III, L.P., as  Associate General Partner of DLJ Offshore Partners III-1,  C.V. |
|   |                                                                                                                                                                   |
|   |                                                                                                                                                                   |
|   | By:                                                                                                                                                                    | /s/ George R. Hornig |   |
|   |                                                                                                                                                                   | Name: George R.  Hornig |
|   |                                                                                                                                                                   | Title: Managing Director |
|   |                                                                                                                                                                   |
|   | DLJ MERCHANT BANKING III, INC., as Advisory  General Partner on behalf of                                                                                              |
|   | **DLJ  OFFSHORE PARTNERS III-2, C.V.**and as  attorney-in-fact for DLJ Merchant Banking III, L.P., as  Associate General Partner of DLJ Offshore Partners III-2,  C.V. |
|   |                                                                                                                                                                   |
|   |                                                                                                                                                                   |
|   | By:                                                                                                                                                                    | /s/ George R. Hornig |   |
|   |                                                                                                                                                                   | Name: George R.  Hornig |
|   |                                                                                                                                                                   | Title: Managing  Director |
|   |                                                                                                                                                                   |
|   |                                                                                                                                                                   |
|   | DLJ MERCHANT BANKING III, INC., as Advisory  General Partner on behalf of                                                                                              |
|   | **DLJ  OFFSHORE PARTNERS III, C.V.**                                                                                                                                   |
|   |                                                                                                                                                                   |
|   |                                                                                                                                                                   |
|   | By:                                                                                                                                                                    | /s/ George R. Hornig |   |
|   |                                                                                                                                                                   | Name: George R.  Hornig |
|   |                                                                                                                                                                   | Title: Managing  Director |

 

[Registration RightsAgreement]

 

----

 
|   | **DLJ  MB PARTNERS III GmbH & Co. KG**                                                                                 |
|--------|---------------------------------------------------------------------------------------------------------------------------------|
|   | By: DLJ Merchant  Banking III, Inc., the General  Partner of DLJ Merchant Banking III, L.P., its  Managing Limited Partner |
|   |                                                                                                                            |
|   |                                                                                                                            |
|   | By:                                                                                                                             | /s/ George R. Hornig |   |
|   |                                                                                                                            | Name: George R.  Hornig |
|   |                                                                                                                            | Title: Managing  Director |
|   |                                                                                                                            |
|   | By: DLJ MB GmbH, as General Partner                                                                                             |
|   |                                                                                                                            |
|   |                                                                                                                            | By: | /s/ Michael Isikow |   |
|   |                                                                                                                            |   | Name: Michael  Isikow |
|   |                                                                                                                            |   | Title: Managing Director |
|   |                                                                                                                            |   |   |
|   |                                                                                                                            | By: | /s/ Edward S. Nadel |   |
|   |                                                                                                                            |   | Name: Edward S.  Nadel |
|   |                                                                                                                            |   | Title: Managing Director |
|   |                                                                                                                            |
|   | **MILLENNIUM  PARTNERS II, L.P.**                                                                                               |
|   | By: DLJ Merchant  Banking III, Inc., its Managing  General Partner                                                         |
|   |                                                                                                                            |
|   |                                                                                                                            |
|   | By:                                                                                                                             | /s/ George R. Hornig |   |
|   |                                                                                                                            | Name: George R.  Hornig |
|   |                                                                                                                            | Title: Managing  Director |
|   |                                                                                                                            |
|   | **MBP  III PLAN INVESTORS, L.P.**                                                                                               |
|   | By: DLJ LBO  Plans Management Corporation II, its  General Partner                                                              |
|   |                                                                                                                            |
|   |                                                                                                                            |
|   | By:                                                                                                                             | /s/ George R. Hornig |   |
|   |                                                                                                                            | Name: George R.  Hornig |
|   |                                                                                                                            | Title: President |

 

[Registration RightsAgreement]

 

----

 
| ** ** | **NEWTON  CO-INVEST I LLC**                         |
|------------|----------------------------------------------------------|
| ** ** | ** **                                               |
| ** ** | By: Newton Manager  Co-Invest, LLC, its Managing  Member |
| ** ** | ** **                                               |
| ** ** | ** **                                               |
|       | By:                                                      | /s/  David A. Spuria |   |
|       |                                                     | Name: | David A. Spuria |
|       |                                                     | Title: | Vice President and  Secretary |
|       |                                                     |   |   |
|       |                                                     |   |
| ** ** | **NEWTON  CO-INVEST II LLC**                        |
| ** ** | ** **                                               |
| ** ** | By: Newton Manager  Co-Invest, LLC, its Managing  Member |
| ** ** |                                                     |
| ** ** |                                                     |
|       | By:                                                      | /s/  David A. Spuria |   |
|       |                                                     | Name: | David A. Spuria |
|       |                                                     | Title: | Vice President and  Secretary |
|            |                                                          |  |  |  |  |  |

 

[Registration RightsAgreement]

 

----

 
| ** ** | **NEWTON  HOLDINGS, LLC** |
|------------|---------------------------|
| ** ** | ** **                |
| ** ** | ** **                |
|       | By:                       | /s/  David A. Spuria |   |
|       |                      | Name: | David A. Spuria |
|       |                      | Title: | Vice President and  Secretary |
|            |                           |  |  |  |

 

[Registration RightsAgreement]

 

----