**Exhibit 10.6**

 

***ExecutionCopy***

 

Newton Acquisition, Inc.

 

September 30, 2005

 

Re:  Opportunity to Acquire Shares

 

Dear Neiman MarcusExecutive,

 

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

 

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

 

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

 

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

 

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

 

3.             Form ofConsideration.  If you choose toinvest in the Shares, (i) you must invest a minimum of $50,000, and (ii) youmust first satisfy your investment of the Rollover Shares by contributing allNMG shares that you purchased from NMG on October 29, 2004 under the NMG1997 Stock Incentive Plan for $60.83 (the “10/29 Rollover Shares”), ifyou hold any such shares.  Thereafter,any additional investment of the Rollover Shares may be satisfied by rollingover other NMG shares that you hold as a capital asset (e.g., shares youacquired on the market or shares you acquired by exercising stock options, butnot including restricted stock or stock units), if any, or by making your CashContribution.  Your Cash Contributionwill automatically be deducted from your after-tax merger proceeds (e.g., fromany cash payment of the Merger Consideration to which you may be entitled withrespect to equity or equity-based interests other than those being rolled overpursuant to this Agreement), provided that if such proceeds are insufficient,any shortfall must be received by wire transfer by the close of business on theday before the Closing (wire information will be provided to you).   With respect to the 10/29 Rollover Shares,you hereby authorize NMG to take such action as may be necessary to cause theseshares to be rolled over.  Delivery of anyother Rollover Shares will occur as follows: (x) with respect to RolloverShares for which physical certificates were delivered to you, by delivering thephysical certificates that were so issued; and (y) with respect to RolloverShares you hold through a brokerage account, by having the brokerage firm bywhich such Rollover Shares are held transfer these Rollover Shares to anaccount established in Newco’s name (the “Newco Account”) (transferinformation will be provided to you).  **The Rollover Shares must be credited to the NewcoAccount before 12:00 p.m., Wednesday, October 5, 2005**,which means that you should instruct your broker to initiate the transfer by12:00 p.m. on Tuesday, October 5, 2005.

 

4.             Acceptanceand Closing; Conditions.  You mayaccept this offer and the terms of this Agreement by completing and returningthe Acceptance Form below, in which case the closing of the acquisition ofthe Shares will occur immediately after the Closing.  This offer is conditioned upon the occurrenceof the Closing.  If the Closing does notoccur on or before October 17, 2005 (the “Closing Deadline”), thisAgreement will be canceled and you will have no rights with respect hereto andany Rollover Shares that you have transferred or cash payment that you havemade pursuant to Section 3 will be returned to you; provided, thatif Newco determines on or before the Closing Deadline and in good faith thatthe Closing is likely to occur on or before October 31, 2005, the ClosingDeadline shall automatically be extended to October 31, 2005.

 

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

 

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

 

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

 

8.             TaxReporting.  It is intended that yourcontribution of the Rollover Shares, if any, shall be treated as a tax-freetransfer under Section 351 of the Internal Revenue Code of 1986, asamended (the “Code”).

 

**All discussions of U.S. federal taxconsiderations in this document have been written to support the marketing ofthe Shares.  Such discussions were notintended or written to be used, and cannot be used by any taxpayer, for thepurpose of avoiding U.S. federal tax penalties. You should consult your own tax advisers in determining the taxconsequences of the rollover and of holding the Shares, including theapplication to your particular situation of the U.S. federal tax considerationsdiscussed herein, as well as the application of state, local, foreign, or othertax laws.**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

**By electing to contribute the Rollover Shares pursuant tothis Agreement, you acknowledge that you are instructing Newco and itsaffiliates to distribute to you, following the Closing, Shares in Newco insteadof cash, as described above, and you hereby acknowledge that you do not have,and will not assert that you have, any claim against Newco, the MajorityHolders (as defined below) or their respective affiliates to receive the MergerConsideration or any other payment in exchange for the Rollover Shares, exceptas contemplated herein.  You furtheracknowledge that any tax bonus to make up for the differential between short-termand long-term capital gains rates that otherwise would be paid to you will notbe so paid on the 10/29 Rollover Shares.**

 

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

 

10.           OtherNMG Interests.  You acknowledge thatany other equity or equity-based interests that you hold in NMG that you do notelect to roll over, or which are not accepted for rollover for any reasonpursuant to this Agreement, will be treated in accordance with the MergerAgreement.

 

11.           GoverningLaw.  All questions concerning the construction,validity and interpretation of this Agreement will be governed by and construedin accordance with the laws of the State of Delaware, without giving effect toany choice of law or conflict of law provision or rule that would causethe application of the laws of any jurisdiction other than the State ofDelaware.

 

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

 

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*[Signature Page Follows]*

 

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

 
|                                                                                                                                                                                                                                                                                                                                        | Sincerely,                     |
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|                                                                                                                                                                                                                                                                                                                                        | Newton  Acquisition, Inc. |
|                                                                                                                                                                                                                                                                                                                                        | By:                            | David Spuria |   |
|                                                                                                                                                                                                                                                                                                                                        | Title:                         | Vice President |   |
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| Agreed to and  Accepted by:                                                                                                                                                                                                                                                                                                                 |                           |
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| Signature                                                                                                                                                                                                                                                                                                                                   |                           |
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| Please print  your name and address:                                                                                                                                                                                                                                                                                                        |                           |
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| By execution  below, NMG and its respective affiliates agree, if so directed by you, to use  reasonable efforts to effect a rollover pursuant to this Agreement as a  tax-free distribution under section 351 of the Code, unless otherwise  required pursuant to a final determination, as defined in Section 1313  of the Code: |                           |
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|  *for*The  Neiman Marcus Group, Inc.                                                                                                                                                                                                                                                                                              |
| By:                                                                                                                                                                                                                                                                                                                                         |                           |   |
| Title:                                                                                                                                                                                                                                                                                                                                      |                           |   |
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S-1

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

 

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

 

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

 

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

 

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

 

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

 
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F-1

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**ANNEXA**

 

[STOCKHOLDERS’AGREEMENT]

 

A-1

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**MANAGEMENT STOCKHOLDERS’ AGREEMENT**

** **

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

 

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

 

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

 

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

 

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

 

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

 

(a)           “Affiliate” shall means, withrespect to any entity, any other corporation, organization, association,partnership, sole proprietorship or other type of entity, whether incorporatedor unincorporated, directly or indirectly controlling or controlled by or underdirect or indirect common control with such entity.

 

(b)           “Board”shall mean the Board of Directors of the Company or any committee appointed bythe Board to administer the Plan pursuant to the terms of the Plan.

 

(c)           “Cause” shall mean, when usedin connection with the termination of a Management Stockholder’s Employment,unless otherwise provided in any stock option grant agreement entered betweenthe Company and the Management Stockholder with respect to any Options that maybe granted under the Plan, effective employment agreement or other writtenagreement with respect to the termination of a Management Stockholder’sEmployment, the termination of the Management Stockholder’s Employment with theCompany and all Affiliates on account of****(i) afailure of the Management Stockholder to substantially perform his or herduties (other than as a result of physical or mental illness or injury) thathas continued after NMG has provided written notice of such failure andExecutive has not cured such failure within 30 days of the date of such writtennotice; (ii) the Management Stockholder’s willful misconduct or grossnegligence which is materially injurious to the Company; (iii) a breach bya Management Stockholder of the Management Stockholder’s fiduciary duty or dutyof loyalty to the Company and its Affiliates; (iv) the ManagementStockholder’s unauthorized removal from the premises of the Company or anAffiliate of any document (in any medium or form) relating to the Company or anAffiliate or the customers of the Company or an Affiliate; or (v) thecommission by the Management Stockholder of any felony or other serious crimeinvolving moral turpitude.  Any rightsthe Company or an Affiliate may have hereunder in respect of the events givingrise to Cause shall be in addition to the rights the Company or Affiliate mayhave under any other agreement with the Management Stockholder or at law or inequity.  If, subsequent to a ManagementStockholder’s termination of Employment, it is discovered that such ManagementStockholder’s Employment could have been terminated for Cause, the ManagementStockholder’s Employment shall, at the election of the Board, in its sole discretion,be deemed to have been terminated for Cause retroactively to the date theevents giving rise to Cause occurred. Notwithstanding the foregoing, a failure to meet performanceexpectations shall not, by itself, constitute Cause hereunder where the Boarddetermines that the Management Stockholder has performed his duties in goodfaith.

 

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(d)           “Changeof Control” shall mean the occurrence of any of the following events afterthe Effective Time: (i) any sale, lease, exchange or other transfer (in onetransaction or a series of related transactions) of all or substantially all ofthe assets of the Company on a consolidated basis to any Person or group ofrelated persons for purposes of Section 13(d) of the Exchange Act (a “Group”),together with any Affiliates thereof other than to a Majority Stockholder; (ii) theapproval by the holders of the outstanding voting power of the Company of anyplan or proposal for the liquidation or dissolution of the Company; (iii) (A) anyPerson or Group (other than the Majority Stockholder) shall become the beneficial owner(within the meaning of Section 13(d) of the Exchange Act), directlyor indirectly, of Common Stock representing more than 40% of the aggregateoutstanding voting power of the Company and such Person or Group actually hasthe power to vote such Common Stock in any such election and (B) theMajority Stockholder beneficially owns (within the meaning of Section 13(d) ofthe Exchange Act), directly or indirectly, in the aggregate a lesser percentageof the voting power of the Company than such other Person or Group; (iv) thereplacement of a majority of the Board over a two-year period from thedirectors who constituted the Board at the beginning of such period, and suchreplacement shall not have been approved by a vote of at least a majority ofthe Board then still in office who either were members of such Board at thebeginning of such period or whose election as a member of such Board waspreviously so approved or who were nominated by, or designees of, a MajorityStockholder; or (v) consummation of a merger or consolidation of theCompany with another entity in which holders of the Common Stock of the Companyimmediately prior to the consummation of the transaction hold, directly orindirectly, immediately following the consummation of the transaction, lessthan 50% of the common equity interest in the surviving corporation in suchtransaction and the Majority Stockholder does not hold a sufficient amount ofvoting power (or similar securities) to elect a majority of the survivingentity’s board of directors.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

ii.     on which a Public Market forthe Common Stock exists, (i) closing price on such day of a share ofCommon Stock as reported on the principal securities exchange on which sharesof Common Stock are then listed or admitted to trading or (ii) if not soreported, the average of the closing bid and ask prices on such day as reportedon the National Association of Securities Dealers Automated Quotation System or(iii) if not so reported, as furnished by any member of the NationalAssociation of Securities Dealers, Inc. (“NASD”) selected by theBoard.  The Fair Market Value of a shareof Common Stock as of any such date on which the applicable exchange orinter-dealer quotation system through which trading in the Common Stockregularly occurs is closed shall be the Fair Market Value determined pursuantto the preceding sentence as of the immediately preceding date on which the

 

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

 

(k)           “GoodReason” shall mean, unless otherwise provided in any stock option grantagreement entered between the Company and the Management Stockholder withrespect to any Options that may be granted under the Plan, effective employmentagreement or other written agreement with respect to the termination of aManagement Stockholder’s Employment,  (i) amaterial diminution in a Management Stockholder’s duties and responsibilitiesother than a change in such Management Stockholder’s duties andresponsibilities that results from becoming part of a larger organizationfollowing a Change of Control, (ii) a decrease in a Management Stockholder’sbase salary, bonus opportunity or benefits other than a decrease in bonusopportunity or benefits that applies to all employees of the Company or itsAffiliates otherwise eligible to participate in the affected plan, or (iii) arelocation of a Management Stockholder’s primary work location more than 50miles from the Management Stockholder’s work location immediately prior to theManagement Stockholder’s execution of this Agreement, without the ManagementStockholder’s prior written consent; provided that, within thirty daysfollowing the occurrence of any of the events set forth herein, the ManagementStockholder shall have delivered written notice to the Company of his or herintention to terminate his or her Employment for Good Reason, which noticespecifies in reasonable detail the circumstances claimed to give rise to theManagement Stockholder’s right to terminate Employment for Good Reason, and theCompany shall not have cured such circumstances within thirty days followingthe Company’s receipt of such notice.

 

(l)            “MajorityStockholder,” for purposes of this Agreement, shall mean, collectively orindividually as the context requires, Newton Holding, LLC, TPG Newton III, LLC, TPGPartners IV, L.P., TPG Newton Co-Invest I, LLC, Warburg Pincus PrivateEquity VIII, L.P., Warburg PincusNetherlands Private Equity VIII C.V. I, Warburg Pincus Germany Private EquityVIII K.G , Warburg Pincus Private Equity IX, L.P and/or their respectiveAffiliates.

 

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

 

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

 

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

 

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

 

2.             Investment; Issuanceof Shares.

 

(a)           The ManagementStockholder represents that the Shares are being acquired for investment andnot with a view toward the distribution thereof.

 

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

 

**Theshares represented by this certificate are subject to the terms and conditionsof a Management Stockholders’ Agreement dated as of October 6, 2005 andmay not be sold, transferred, hypothecated, assigned or encumbered, except asmay be permitted by the aforesaid Agreement. A**

 

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

 

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

 

Upon the termination of this Agreement, or uponregistration of the Shares under the Securities Act, the Management Stockholdershall have the right to exchange any Shares containing the above legend (i) inthe case of the registration of the Shares, for Shares legended only with thefirst paragraph described above and (ii) in the case of the termination ofthis Agreement, for Shares legended only with the second paragraph describedabove.

 

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

 

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

 

(b)           (i) In the event the Management Stockholder’s Employment with the Company isterminated by the Company for Cause or by the Management Stockholder for anyreason other than Good Reason, death, Disability or Retirement, the Company (orits designated assignee) shall have the right, during the 120-day periodfollowing the later to occur of (x) such termination of Employment and (y) thedate on which the Management Stockholder or Transferee has held the Shares mostrecently acquired to be sold pursuant to this Section 3(c) for at leastsix (6) months, to purchase from the Management Stockholder or theManagement Stockholder’s Transferee, and upon the exercise of such right theManagement Stockholder or such Transferee shall sell to the Company (or itsdesignated assignee), all or any portion of the Shares acquired by theManagement Stockholder or Transferee on the exercise of Options and held by theManagement Stockholder or Transferee as of the date as of which such right isexercised at a per Share price equal to the Fair Market Value of a share ofCommon Stock determined as of the date such right is exercised.  The Company (or its designated assignee)shall exercise such right by delivering to the Management Stockholder orTransferee, as applicable, a written notice specifying its intent to purchaseShares held by the Management Stockholder or Transferee (the “Call Notice”),the date as of which such right is to be exercised and the number of Shares tobe purchased.  Such purchase and saleshall occur on such date as the Company (or its designated assignee) shallspecify, which date shall be within thirty (30) days after the date on whichthe Call Notice is delivered or the Outside Appraisal is delivered.  The Company will use commercially reasonableefforts to make the payment for the Shares in cash on the date of such purchaseand sale; providedthat, despite using such efforts, if suchpayment will result in the violation of the terms or provisions of, or resultin a default or event of default under, any guarantee, financing or securityagreement or document entered into by the Company or any of its Affiliates andin effect on such date (hereinafter a “Financing Agreement”), theCompany may delay any such payment for no more than two (2) years.  In the event the payment of the purchaseprice is delayed as a result of a restriction imposed by a Financing Agreementas provided above, such payment shall be made without the application offurther conditions or impediments as soon as practicable after the payment ofsuch purchase price would no longer result in the violation of the terms orprovisions of, or result in a default or event of default under, any FinancingAgreement, and such payment shall equal the amount that would have been paid tothe Management Stockholder or Transferee if no delay had occurred plus interestfor the period from the date on which the purchase price would have been paidbut for the delay in payment provided herein to the

 

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date on which suchpayment is made (the “Delay Period”), calculated at an annual rate equalto the average annual prime rate charged during the Delay Period by anationally recognized bank designated by the Board plus two (2) percentagepoints.  In the event that the Company isnot able to make payment within two (2) years after the date specified inthe Call Notice, the Company will, upon the written request of the ManagementStockholder or Transferee, cancel the Call Notice and return to the ManagementStockholder or Transferee the Shares subject to the Call Notice (as adjusted totake into account any corporate transactions during the intervening period) inexchange for cancellation of the debt and any interest payments that would haveotherwise been payable thereon.

 

(ii)           Inthe event that the Management Stockholder or Transferee disagrees with theCompany’s determination of the Fair Market Value of a Share, the ManagementStockholder or Transferee shall have the right to require the Company to seekan appraisal to determine the Fair Market Value of a Share in lieu of the Boarddetermination (an “Outside Appraisal”); provided that theTransferee shall not be entitled to an Outside Appraisal in the event anappraisal to determine the Fair Market Value of a Share has been done withinthe three-month period immediately preceding delivery of the Call Notice andthe Board determines in good faith that no event has occurred that would resultin the prior determination of Fair Market Value being materiallyinaccurate.  Any such Outside Appraisalshall be made by one qualified person (which can be an accounting firm orinvestment banking firm or similar firm) (each, an “Appraiser”), havingsubstantial experience in the valuation of similar enterprises in the UnitedStates.  The Company and the ManagementStockholder or Transferee shall mutually agree upon such Appraiser within 30days of the Call Notice; provided that in the event an appraisal todetermine Fair Market Value of a Share has been done within the twelve-monthperiod immediately preceding delivery of the Call Notice, the Outside Appraisalshall be done by the same Appraiser that performed the prior appraisal unlessthe Company consents to a different Appraiser. The Company shall each bear 100% of the fees and expenses of theAppraiser.

 

(c)(i)        In the event the Management Stockholder’s Employmentwith the Company terminates due to the death or Disability of the ManagementStockholder, such Management Stockholder or Transferee shall have the right,during the 120-day period following the later to occur of (x) suchtermination of Employment and (y) the date on which the ManagementStockholder or Transferee has held the Shares most recently acquired to be soldpursuant to this Section 3(c) for at least six (6) months, tosell to the Company (or its designated assignee), and upon the exercise of suchright the Company (or its designated assignee) shall purchase from theManagement Stockholder or Transferee, all or any portion of the Shares held bythe Management Stockholder or Transferee as of the date as of which such rightis exercised at a per Share price equal to the Fair Market Value of a Share ofCommon Stock determined as of the date as of which such right isexercised.  The Management Stockholder orTransferee shall exercise such right by delivering to the Company a writtennotice (the “Put Notice”) specifying his or her intent to sell Sharesheld by the Management Stockholder or Transferee, the date as of which suchright is to be exercised and the number of Shares to be sold.  Such purchase and sale shall occur on suchdate as the Company (or its designated assignee) and the Stockholder shallagree, which date shall be within thirty (30) days after the later of thedelivery of the Put Notice or the delivery of the Outside Appraisal.  The Company will use commercially reasonableefforts to make the payment for the Shares in cash on the date of such purchaseand sale; providedthat, despite using such efforts, if suchpayment will result in the violation of the terms or provisions of, or resultin a default or event of default under, a Financing Agreement, the Company maydelay any such payment for no more than two (2) years.  In the event the payment of the purchaseprice is delayed as a result of a restriction imposed by a Financing Agreementas provided above, the Company shall notify the Management Stockholder orTransferee as soon as practicable of the need for such a delay (the “DelayNotice”), and shall permit the Management Stockholder or Transferee, withinten (10) days of the delivery of the Delay Notice, to rescind the PutNotice.  If the Management Stockholder orTransferee does not rescind the Put Notice as provided in the precedingsentence, the Put Notice shall remain outstanding and any payment in respectthereof shall be made without the application of further conditions or impedimentsas soon as practicable after the payment of such purchase price would no longerresult in the violation of the terms or provisions of, or result in a defaultor event of default under, any Financing Agreement, and such payment shallequal the amount that would have been paid to the Management Stockholder orTransferee if no delay had occurred plus interest for the Delay Period,calculated at an annual rate equal to the average annual prime rate chargedduring the Delay Period by a nationally recognized bank designated by the Boardplus two (2) percentage points.  Inthe event that the Company is not able to make payment within two (2) yearsafter the date specified in the Put Notice, the Company will, upon the writtenrequest of the Management Stockholder or Transferee, cancel the Put Notice inexchange for cancellation of the debt and any interest payments that would haveotherwise been payable thereon.

 

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

 

(d)           Inaddition, if the Board receives the advice of counsel selected by the Companyand reasonably acceptable to the Management Stockholder or any Transferee thatthe inclusion of the call right or the put right described in this Section 3would result in the Option or Shares becoming subject to Section 409A ofthe Code, the Board shall have the right to make such modifications oramendments to this Section 3 as the Board determines are reasonablynecessary to avoid the application of Section 409A of the Code without theconsent of the Management Stockholder or any Transferee.  In making any such amendments ormodifications, the Board shall take all steps to put the parties insubstantially same economic position as they would have been in had suchmodifications or amendments not been made to the extent reasonablypractical.  The Management Stockholderand any Transferee hereby stipulate that Cleary Gottlieb Steen and Hamilton LLPis acceptable counsel for purposes of this Section 3(d).

 

4.             CertainRights.

 

(a)           DragAlong Rights.  If one or moreMajority Stockholder desires to sell all or substantially all of the Shares ofCommon Stock in which it has a “pecuniary interest” as defined in Rule 16a-1of the Exchange Act (including through the disposition of interests in NewtonHolding, LLC) or a portion of the Shares of Common Stock representing Controlof the Company, in either case to a good faith independent purchaser (a “Purchaser”)(other than any other Majority Stockholder, other investment partnership,limited liability company or other entity established for investment purposesand controlled by one or more of the members (other than passive investors) orthe principals of the Majority Stockholder or any of their Affiliates and otherthan any Employees of the Majority Stockholder or their Affiliates hereinafterreferred to as a “Permitted Transferee”) and said Purchaser desires toacquire all or substantially all of the issued and outstanding Shares of CommonStock (or all or substantially all of the assets of the Company) upon suchterms and conditions as agreed to with the Majority Stockholder, the ManagementStockholder or Transferee agrees to sell to such Purchaser a number of itsShares of Common Stock, not to exceed (a) the number of shares of CommonStock held by such Management Stockholder or Transferee multiplied by (b) afraction, the numerator of which is the aggregate number of Shares of CommonStock in which the Majority Stockholder has a pecuniary interest that suchMajority Stockholder has proposed to be transferred, and the denominator ofwhich is the aggregate number of Shares of Common Stock in which the MajorityStockholder has a pecuniary interest (or to vote such number of his Shares in favorof any merger or other transaction which would effect a sale of such shares ofCommon Stock or assets of the Company) at the same price per Share of CommonStock and pursuant to the same terms and conditions with respect to payment forthe Shares of Common Stock in which the Majority Stockholder has a pecuniaryinterest as agreed to by the Majority Stockholder; provided that, exceptwith respect to any liability incurred by such Management Stockholder or anyTransferee individually, the Management Stockholders and any Transferees shallnot be liable to a Purchaser for an amount greater than the proceeds from thesale.  In such case, the MajorityStockholder shall give written notice of such sale to the ManagementStockholder or Transferee at least fifteen (15) days prior to the consummationof such sale, setting forth (i) the consideration to be received by theholders of Shares of Common Stock, (ii) the identity of the Purchaser, (iii) anyother material items and conditions of the proposed transfer and (iv) thedate of the proposed transfer.  TheCompany shall be responsible for the proportionate Share of the costs of theproposed Transfer incurred by the Management Stockholders and any Transfereesto the extent not paid or reimbursed by the proposed Purchaser.

 

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

 

(b)           TagAlong Rights.  (i) Subject toparagraph (iv) of this Section 4(b), if one or more MajorityStockholder or its Permitted Transferee proposes to transfer its direct orindirect pecuniary interest (as defined in Rule 16a-1 under the ExchangeAct) in any Shares of Common Stock to a Purchaser (other than a

 

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

 

(ii)           The ManagementStockholder or Transferee shall have the right to elect, by delivery of writtennotice to the Majority Stockholder within twenty (20) days from delivery of theSelling Stockholder’s Notice, to sell to the proposed transferee a number ofits Shares of Common Stock, not to exceed (a) the number of shares ofCommon Stock and Shares underlying vested options held by such ManagementStockholder or Transferee multiplied by (b) a fraction, the numerator ofwhich is the aggregate number of Shares of Common Stock in which the MajorityStockholder has a pecuniary interest that such Majority Stockholder hasproposed to be transferred, and the denominator of which is the aggregatenumber of Shares of Common Stock in which the Majority Stockholder has apecuniary interest, on the same terms and conditions (including price per shareof Common Stock) as the Majority Stockholder. In the event that the transferee does not wish to acquire all of theShares offered by the Management Stockholder or Transferee, the number ofShares of Common Stock to be purchased by such transferee shall be allocatedpro rata among the Majority Stockholders and the Other Stockholders inaccordance with the number of shares of Common Stock and Shares underlyingvested Options that each such stockholder elected to transfer to thetransferee.

 

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

 

(iv)          Inconnection with the exercise of its tag-along rights under this Section 4(b),if the Management Stockholder or Transferee desires to exercise vested Optionsto acquire up to the number of Shares the Management Stockholder or Transfereeis permitted to sell pursuant to the exercise of its tag-along rights pursuantto this Section 4(b), the Company will permit the Management Stockholderor Transferee to exercise any such vested Options through net-physicalsettlement (net of the applicable exercise price and applicable withholdingtaxes) if the Company’s independent auditors determine that net-physicalsettlement of any such Options would not produce less-favorable accountingconsequences for the Company than if the Management Stockholder or Transfereepaid the exercise price for any such vested Options in cash.

 

(v)           Notwithstandinganything to the contrary contained herein, the provisions of this Section 4(b) shallnot apply during the period from the Effective Date through the firstanniversary of the Effective Date to any sale or transfer by a MajorityStockholder of its pecuniary interest in any shares of Common Stock for a pricethat is equal to or less than the Fair Market Value of such share of CommonStock as of the Effective Date unless and until the Majority Stockholder, aftergiving effect to the proposed sale or transfer, shall have sold or transferredin the aggregate (other than to Permitted Transferees) its pecuniary interestin shares of Common Stock representing 15.0% or more of the shares of CommonStock in which the Majority Stockholder collectively had a pecuniary interestas of the Effective Time.

 

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(c)           PermittedTransferees.  Any PermittedTransferee to which a Majority Stockholder’s pecuniary interest in any sharesof Common Stock is Transferred shall agree to execute this Agreement as acondition to such Transfer.

 

5.             Piggyback RegistrationRights.

 

(a)           Noticeto Management Stockholder.  If theCompany determines that it will file a registration statement under theSecurities Act, other than a registration statement on Form S-4 or Form S-8or any successor form, for an offering which includes shares of Common Stockheld by the Majority Stockholder, then the Company shall give prompt writtennotice to the Management Stockholder or Transferee that such filing is expectedto be made (but in no event less than 30 days nor more than 60 days in advanceof filing such registration statement), the jurisdiction or jurisdictions inwhich such offering is expected to be made, and the underwriter or underwriters(if any) that the Company (or the person requesting such registration) intendsto designate for such offering.  If the Company,within 15 days after giving such notice, receives a written request forregistration of any Shares from the Management Stockholder or Transferee, thenthe Company shall include in the same registration statement the number ofShares to be sold by the Management Stockholder or Transferee as shall havebeen specified in his or her request, except that the Management Stockholder orTransferee shall not be permitted to register more than a Pro Rata Portion ofher Shares.  The Company shall bear allcosts of preparing and filing the registration statement, and shall indemnifyand hold harmless, to the extent customary and reasonable, pursuant toindemnification and contribution provisions to be entered into by the Companyat the time of filing of the registration statement, the seller of any sharesof Common Stock covered by such registration statement.

 

Notwithstanding anything herein to the contrary, theCompany, on prior notice to the participating Stockholder, may abandon itsintention to file a registration statement under this Section 5(a) atany time prior to such filing.

 

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

 

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

 

(c)           PermittedTransfer.  Notwithstanding anythingto the contrary contained herein, sales of Shares pursuant to a registrationstatement filed by the Company may be made without compliance with any otherprovision of this Agreement.

 

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

 

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7.             Acknowledgement ofNewton Holding, LLC and the Company. The Company and Newton Holding, LLC (“Newton LLC”) herebyacknowledge that the Management Stockholders shall not be disadvantaged withrespect to the Shares or Options solely by reason of holding shares or optionsto purchase shares of the Company’s Common Stock instead of membershipinterests or options to purchase membership interests in Newton LLC.  In the event there is a corporate transactionaffecting the membership interests of Newton LLC or any dividend ordistribution made to holders of the membership interests in Newton LLC inrespect of such interests, the Company and Newton Holding shall takecommercially reasonable steps to assure that appropriate adjustments and/ordividends or distributions are made to or in respect of the Shares such thatthe Management Stockholders will be in the same position in which they wouldhave been had they received membership interests in Newton LLC instead of theShares; provided that this Section 7 shall not be construed toentitle any Management Stockholder to any membership or other interests inNewton LLC.   For purposes of thisAgreement, no Management Stockholder shall be deemed to be disadvantaged from atax perspective by reason of his holding Options or Shares as opposed tomembership interests in a limited liability company or partnership interests ina partnership.

 

8.             Distributions WithRespect To Shares.  As used herein,the term “Shares” includes securities of any kind whatsoever distributedwith respect to the Company’s Common Stock acquired by the ManagementStockholder or his or her Transferee (whether pursuant to the Plan, the letteragreement dated on or about September 30, 3005 between the Company andsuch Management Stockholder or otherwise) or any such securities resulting froma stock split or consolidation involving such Common Stock.

 

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

 

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

 

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

 

With a copy to:

 

Cleary Gottlieb Steen & Hamilton LLPOne Liberty PlazaNew York, NY 10006

 

Attention: Robert J. Raymond

 

If to the Company:

 

Newton Acquisition, Inc.301 Commerce Street, Suite 3300Fort Worth, TX 76102

 

Attention: General Counsel

 

With a copy to:

 

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Cleary Gottlieb Steen & Hamilton LLPOne Liberty PlazaNew York, NY 10006

 

Attention: Robert J. Raymond

 

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

 

With a copy to:

 

Morgan, Lewis & Bockius LLP101 Park AvenueNew York, NY 10178

 

Attention: Gary Rothstein

 

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

 

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

 

12.           Governing Law.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Delaware, withoutreference to its principles of conflicts of law.

 

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

 

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

 

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

 

16.           Miscellaneous.  The headings contained in this Agreement arefor reference purposes only and shall not affect in any way the meaning orinterpretation of this Agreement.

 

*    *     *     *    *     *

 

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

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

 

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|        |       |       | **NEWTON HOLDING, LLC**                                 |
|--------|------------|------------|---------------------------------------------------------|
|   |       |       |                                                    |
|   | By:        |       | /s/ David A.  Spuria                                    |
|   | Name:      |       | David A. Spuria                                         |
|   | Title:     |       | Vice  President & Secretary                    |
|   |       |       |                                                    |
|   |       |       |                                                    |
|   | ** ** | ** ** | **TPG NEWTON III LLC**                                  |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **TPG Partners III, L.P., its  Managing Member**        |
|   | By:        | ** ** | **TPG GenPar III, L.P., its  General Partner**          |
|   | By:        | ** ** | **TPG Advisors III, Inc.,  its General Partner**   |
|   | ** ** | ** ** | ** **                                              |
|   | By:        |       | /s/ David A.  Spuria                                    |
|   | Name       |       | David A. Spuria                                         |
|   | Title:     |       | Vice President                                          |
|   | ** ** | ** ** | ** **                                              |
|   | ** ** | ** ** | ** **                                              |
|   | ** ** | ** ** | **TPG PARTNERS IV, L.P.**                               |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **TPG Gen Par IV, L.P., its  General Partner**          |
|   | By:        | ** ** | **TPG Advisors IV, Inc., its  General Partner**    |
|   | ** ** | ** ** | ** **                                              |
|   | By:        |       | /s/ David A.  Spuria                                    |
|   | Name:      |       | David A. Spuria                                         |
|   | Title:     |       | Vice President                                          |
|   |       |       |                                                    |
|   |       |       |                                                    |
|   | ** ** | ** ** | **TPG NEWTON CO-INVEST I LLC**                          |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **TPG GenPar IV, L.P., its  Managing Member**           |
|   | By:        | ** ** | **TPG Advisors IV, Inc., its  General Partner**    |
|   | ** ** | ** ** | ** **                                              |
|   | By:        |       | /s/ David A.  Spuria                                    |
|   | Name:      |       | David A. Spuria                                         |
|   | Title:     |       | Vice President                                          |
|   |       |       |                                                    |
|   |       |       |                                                    |
|   | ** ** | ** ** | **WARBURG PINCUS PRIVATE**                              |
|   | ** ** | ** ** | **EQUITY  VIII, L.P.**                                  |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **Warburg Pincus Partners, LLC,  its General Partner**  |
|   | By:        | ** ** | **Warburg Pincus & Co.,  its Managing Member** |
|   | ** ** | ** ** | ** **                                              |
|   | By:        |       | /s/ Kewsong Lee                                         |
|   | Name:      |       | Kewsong Lee                                             |
|   | Title:     |       | Managing  Director                                      |
|   |       |       |                                                    |
|   |       |       |                                                    |
|   | ** ** | ** ** | **WARBURG PINCUS NETHLANDS  PRIVATE**                   |
|   | ** ** | ** ** | **EQUITY  VIII C.V.I.**                                 |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **Warburg Pincus Partners, LLC,  its General Partner**  |
|   | By:        | ** ** | **Warburg Pincus & Co.,  its Managing Member** |

 

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|        | By:        |       | /s/ Kewsong Lee                                         |
|--------|------------|------------|---------------------------------------------------------|
|   | Name:      |       | Kewsong Lee                                             |
|   | Title:     |       | Managing  Director                                      |
|   |       |       |                                                    |
|   |       |       |                                                    |
|   | ** ** | ** ** | **WARBURG PINCUS GERMANY PRIVATE**                      |
|   | ** ** | ** ** | **EQUITY VIII K.G.**                                    |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **Warburg Pincus Partners, LLC,  its General Partner**  |
|   | By:        | ** ** | **Warburg Pincus & Co.,  its Managing Member** |
|   | ** ** | ** ** | ** **                                              |
|   | By:        |       | /s/ Kewsong Lee                                         |
|   | Name:      |       | Kewsong Lee                                             |
|   | Title:     |       | Managing  Director                                      |
|   |       |       |                                                    |
|   | ** ** | ** ** | **WARBURG PINCUS PRIVATE EQUITY**                       |
|   | ** ** | ** ** | **IX, L.P.**                                            |
|   | ** ** | ** ** | ** **                                              |
|   | By:        | ** ** | **Warburg Pincus IX LLC, its  General Partner**         |
|   | ** ** | ** ** | ** **                                              |
|   | By:        |       | /s/ Kewsong Lee                                         |
|   | Name:      |       | Kewsong Lee                                             |
|   | Title:     |       | Managing  Director                                      |

 

----

 

SCHEDULE A

**MANAGEMENTSTOCKHOLDERS**

 
|        | By:        |       | /s/ Gerald A. Barnes        |
|--------|------------|------------|-----------------------------|
|   | Name:      |       | Gerald A. Barnes            |
|   | ** ** | ** ** | ** **                  |
|   | By:        |       | /s/ Steven P. Dennis        |
|   | Name:      |       | Steve P. Dennis             |
|   |       |       |                        |
|   | By:        |       | /s/ Jeanie Galvin           |
|   | Name:      |       | Jeanie Galvin               |
|   |       |       |                        |
|   | By:        |       | /s/ Ronald H. Goddard       |
|   | Name:      |       | Ronald H. Goddard           |
|   |       |       |                        |
|   | By:        |       | /s/ James J. Gold           |
|   | Name:      |       | James J. Gold               |
|   |       |       |                        |
|   | By:        |       | /s/ Neva L. Hall            |
|   | Name:      |       | Neva L. Hall                |
|   |       |       |                        |
|   | By:        |       | /s/ Ginny Hershey           |
|   | Name:      |       | Mary Virginia Hershey       |
|   |       |       |                        |
|   | By:        |       | /s/ Brendan Hoffman         |
|   | Name:      |       | Brendan Hoffman             |
|   |       |       |                        |
|   | By:        |       | /s/ Wayne A. Hussey         |
|   | Name:      |       | Wayne A. Hussey             |
|   |       |       |                        |
|   | By:        |       | /s/ Jonathan Joselove       |
|   | Name:      |       | Jonathan Joselove           |
|   |       |       |                        |
|   | By:        |       | /s/ Karen Katz              |
|   | Name:      |       | Karen Katz                  |
|   |       |       |                        |
|   | By:        |       | /s/ Lisa M. Kazor           |
|   | Name:      |       | Lisa M. Kazor               |
|   |       |       |                        |
|   | By:        |       | /s/ Steven Kornajcik        |
|   | Name:      |       | Steven Kornajcik            |
|   |       |       |                        |
|   | By:        |       | /s/ Thomas Lind             |
|   | Name:      |       | Thomas Lind                 |
|   |       |       |                        |
|   | By:        |       | /s/ Marita O’Dea Glodt |
|   | Name:      |       | Marita O’Dea Goldt     |
|   |       |       |                        |
|   | By:        |       | /s/ Ann S. Paolini          |
|   | Name:      |       | Ann S. Paolini              |
|   |       |       |                        |
|   | By:        |       | /s/ John Russell  Patrick   |
|   | Name:      |       | John Russell Patrick        |

 

A-1

----

 
|        | By:    |   | /s/ Gregory G. Shields    |
|--------|--------|--------|---------------------------|
|   | Name:  |   | Gregory G. Shields        |
|   |   |   |                      |
|   | By:    |   | /s/ Stacie Shirley        |
|   | Name:  |   | Stacie Shirley            |
|   |   |   |                      |
|   | By:    |   | /s/ James E. Skinner      |
|   | Name:  |   | James E. Skinner          |
|   |   |   |                      |
|   | By:    |   | /s/ Margaret E.  Spaniolo |
|   | Name:  |   | Margaret E. Spaniolo      |
|   |   |   |                      |
|   | By:    |   | /s/ Thomas P. Stangle     |
|   | Name:  |   | Thomas P. Stangle         |
|   |   |   |                      |
|   | By:    |   | /s/ T. Dale Stapleton     |
|   | Name:  |   | T. Dale Stapleton         |
|   |   |   |                      |
|   | By:    |   | /s/ Ann Stordahl          |
|   | Name:  |   | Ann Stordahl              |
|   |   |   |                      |
|   | By:    |   | /s/ Burton M. Tansky      |
|   | Name:  |   | Burton M. Tansky          |
|   |   |   |                      |
|   | By:    |   | /s/ Kim Yee               |
|   | Name:  |   | Kim Yee                   |

 

A-2

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