Neiman Marcus 2008 Annual Report Download - page 253

(vi) you have had access to all of the information and individuals with respect to the Shares and your investment that you
deem necessary to make a complete evaluation thereof;
(vii) you have had an opportunity to consult an independent tax and legal advisor and your decision to acquire the interest for
investment has been based solely upon your evaluation;
(viii) you are aware that the Internal Revenue Service or other relevant taxing authority may take a position regarding the
rollover contemplated in this Agreement and/or the tax classification of Newco and the Shares contrary to that intended
by Newco as provided in this Agreement and except as specifically provided in Section 10 herein you shall be solely
responsible for any and all tax or other liabilities that may result from the IRS's or other relevant taxing authority's
position; and
(ix) you are aware that the Stockholders' Agreement provides significant restrictions on your ability to dispose of the Newco
Equity.
By electing to contribute the Rollover Shares and not to exercise your Rollover Options pursuant to this Agreement,
you acknowledge that you are instructing Newco and its affiliates to distribute to you, following the Closing, Shares and Newco
Options instead of cash, as described above, and you hereby acknowledge that you do not have, and will not assert that you
have, any claim against Newco, the Majority Stockholder (as defined below) or their respective affiliates to receive the Merger
Consideration or any other payment in exchange for the Rollover Shares, except as contemplated herein.
The "Majority Stockholder" shall mean, collectively or individually as the context requires, Newton Holding, LLC, TPG
Newton III, LLC, TPG Partners IV, L.P., TPG Newton Co-Invest I, LLC, Warburg Pincus Private Equity VIII, L.P., Warburg Pincus
Netherlands Private Equity VIII C.V. I, Warburg Pincus Germany Private Equity VIII K.G, Warburg Pincus Private Equity IX, L.P
and/or their respective affiliates, successors or assigns.
10. Section 409A of the Code; Other Tax Provisions. If Newco receives the advice of counsel selected by Newco and reasonably
acceptable to you that any payment or distribution with respect to the Rollover Shares or Rollover Options (or the Shares and Newco
Options you receive as a result of rolling over the Rollover Shares or Rollover Options) or the conversion of the Rollover Shares or
Rollover Options into Shares and Newco Options pursuant to the terms of this Agreement (the "Payment") would result in the
imposition of a 20% additional tax pursuant to Section 409A of the Code, Newco shall have the right to make such modifications or
amendments to Shares and/or Newco Options as are reasonably necessary to avoid the application of Section 409A of the Code, after
consultation with you and your counsel. In making any such amendments or modifications, Newco shall take all steps to put you in
substantially the same economic position as you would have been in had such modifications or amendments not been made, to the
extent reasonably practical. You hereby stipulate that Cleary Gottlieb Steen and Hamilton LLP is acceptable counsel for purposes of
this Section 10. If, after giving effect to any such modifications or amendments, any Payment results in the imposition of an 20%
additional tax, penalties and interest under Section 409A of the Code, Newco will pay the Executive an additional amount (the "Gross-
Up Payment") such that the net amount retained
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